Agricultural Law Current Issues From A Global Perspective

LITES – Legal Issues in
Transdisciplinary Environmental Studies 1

Series Editors: Massimo Monteduro · Saverio Di Benedetto
Alessandro Isoni
Mariagrazia Alabrese
Margherita Brunori
Silvia Rolandi · Andrea Saba Editors
Agricultural
Law
Current Issues from
a Global Perspective
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LITES – Legal Issues in Transdisciplinary
Environmental Studies
Volume 1
Series Editors
Massimo Monteduro
University of Salento, Lecce, Italy
Saverio Di Benedetto
Alessandro Isoni
The ‘Legal Issues in Transdisciplinary Environmental Studies’ (LITES) Book Series
is based on the assumption that the process of dialogue and cultural integration
between law, life and earth sciences, and social and human sciences should be
strengthened and updated, by relying on transdisciplinary research platforms such
as agroecology, environmental studies, environmental science, and sustainability
science. According to the new paradigm of social-ecological systems (SES), the
concept of the environment is conceived as a complex system of relationships
between ecological and social factors, including the cultural and economic ones.
The primary purpose of law, in this conceptual framework, is to preside over the
durability of the essential conditions for the survival of the social-ecological systems
and the protection of life at all scales (of individuals, societies, ecosystems).
LITES Series aims to explore the relationships between legal and environmental
sciences according to a transdisciplinary perspective. On the one hand, natural and
social environmental sciences need to integrate the point of view of law: this entails
to study the complexities of SES in the light of normative and institutional vari-
ables, with the lens of categories such as rights, duties, powers, responsibilities, and
procedural safeguards. On the other hand, law is called upon to review its own
internal geometries, confronting them with the holistic approach toward sustain-
ability in the scientific debate. Accordingly, law should address the need of
changing the approach that so far has led to both hypertrophy and disarticulation
when regulating closely linked matters such as the environment, agriculture, for-
estry, landscape and cultural heritage, energy, and food.
LITES Series is addressed to a wide international and interdisciplinary reader-
ship, targeting academic researchers and scholars, experts and practitioner lawyers,
public administrations, judges, and law-makers. Its volume editors and contributing
authors have different backgrounds and come from all over the world in order to
provide a forum for discussion and normative analysis about new legal frontiers of
human-environment interactions across disciplinary barriers.
More information about this series at http://www.springer.com/series/15038
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Mariagrazia Alabrese • Margherita Brunori •
Silvia Rolandi • Andrea Saba
Editors
Agricultural Law
Current Issues from a Global Perspective
Editors
Mariagrazia Alabrese Margherita Brunori
DIRPOLIS - Institute of Law, Politics DIRPOLIS - Institute of Law, Politics
and Development and Development
Scuola Superiore Sant’Anna Scuola Superiore Sant’Anna
Pisa, Italy Pisa, Italy
Silvia Rolandi Andrea Saba

DIRPOLIS - Institute of Law, Politics DIRPOLIS - Institute of Law, Politics
and Development and Development
Scuola Superiore Sant’Anna Scuola Superiore Sant’Anna
Pisa, Italy Pisa, Italy
ISSN 2522-5049 ISSN 2522-5057 (electronic)

LITES – Legal Issues in Transdisciplinary Environmental Studies
ISBN 978-3-319-64755-5 ISBN 978-3-319-64756-2 (eBook)
DOI 10.1007/978-3-319-64756-2
Library of Congress Control Number: 2017956119
© Springer International Publishing AG 2017

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Preface
Legal scholars are paying increasing attention to agricultural issues. Nevertheless,

the field largely remains an underresearched area of law and is considered histor-
ically as a specific area of research for life sciences and economics. The number and
scope of questions that revolve around agricultural issues are increasingly requiring
the legal research community to adopt a new approach. Challenges, such as the
governance of the food system worldwide, the maintenance of agricultural natural
resources, as well as land governance, are making it necessary to address agri-food
and agri-environmental issues with a globalized approach. Against this background,
the book aims to address some of the complexities of the agri-food and agri-
environmental regimes.
The Introduction traces the evolution of agricultural law and provides an over-
view of the new social and environmental challenges that will need to be addressed.
Emerging issues are placed in the broader conceptual context of a global
perspective.
The chapters are grouped into three main parts, each of which has its own brief
introduction.
Part I covers the governance of natural resources and their prominence in
tackling food insecurity. Every agricultural activity begins with the resources
provided by nature. While in the past they were traditionally regulated by national
governments, today their regulation is increasingly being addressed through a
framework of international governance. This is due to the necessity to preserve
the availability of natural resources and the conservation of ecosystems while at the
same time responding to the growing world population and the relating demand for
food, in particular for more protein-rich diets, as well as other nonfood agricultural
products. With regard to these aspects, this part examines the concepts of sustain-
able agriculture and agro-ecosystem services in connection with food security.
Part II deals with the regulation of the main product of the agricultural activity—
food. Today, the food production chain is being expanded by technological devel-
opments, interactions between “public” and “private” standards, food safety issues,
animal welfare standards, and markets. This part outlines the answers that agri-food
v
vi Preface
regulations are able to provide in order to meet new and evolving consumer
interests and concerns. Novel foods, animal welfare, direct sales of specific food
products, and the development of e-commerce in the food sector are also covered.
Part III concerns the social, environmental, and legal consequences of a renewed
interest in agricultural investment. Top-down interventions in agricultural systems,
led by both national and international public and private actors, often clash with the
vulnerability of customary local systems on which the livelihood of a rural popu-
lation relies. The evolution and the interplay of different legal systems with regard
to land tenure, environmental concerns, and investments in agriculture are
discussed, drawing on both the most recent international debate as well as case
studies.
Pisa, Italy Mariagrazia Alabrese

Margherita Brunori
Silvia Rolandi
Andrea Saba
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Contents
Agricultural Law from a Global Perspective: An Introduction . . . . . . . 1

Part I Environmental Protection and Food Security at the Cross-Roads

with Agricultural Law
Sustainable Agricultural Production, Environmental Sustainability
and Food Security: How to Frame the Legal Intervention . . . . . . . . . . . 15
Elisa Morgera and Andrea Saba
The Ecological and Perpetual Dimensions of European Food Security:
The Case for Sustainable Agriculture . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Alicia Epstein
International Law on Plant Genetic Resources for Food
and Agriculture: Towards a New Balance? . . . . . . . . . . . . . . . . . . . . . . 53
Anna G. Micara
Results-Based Agri-Environmental Schemes for Delivering Ecosystem
Services in the EU: Established Issues and Emerging Trends . . . . . . . . 83
Andrea Saba
The Legal Instruments for Agri-Environmental Goals and the
Influence of International Factors: The Case of Swiss Agricultural
Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
Christa Preisig
Part II Emerging Consumers’ Interests: Answers from the Agri-Food

Regulation
The Emerging Interests of Consumers: Answers from the Agri-Food
Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
Vito Rubino
vii
viii Contents
Insects in Agriculture: Traditional Roles and Beyond . . . . . . . . . . . . . . 163

Valeria Paganizza
Animal Welfare Standards in Agriculture: Drivers, Implications,
Interface? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
Diane Ryland
Legal Pluralism and the Regulation of Raw Milk Sales in Canada:
Creating Space for Multiple Normative Orders at the Food
Policy Table . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
Sarah Berger Richardson
Food E-Commerce as a New Tool for the Growth of the Economy.
European Legal Framework for Information of Prepacked Food Sold
Online . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
Silvia Rolandi
Part III Land Tenure, Investment Law and Agriculture

Land Governance, Investment Law, Agriculture, and the Rights
of Local Populations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
Adriana Bessa and Margherita Brunori
Access to Land and Security of Tenure in the Resolutions
of the United Nations General Assembly . . . . . . . . . . . . . . . . . . . . . . . . 255
Margherita Brunori
Global Land Rush, Water Grabbing and the Human Right
to Water . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293
Francesca Spagnuolo
The Regulatory Vicious Circle of Investment Operations
in Agriculture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
Federica Violi
Between Customary and Statutory Tenure: Understanding
Large-Scale Land Acquisitions in Zambia . . . . . . . . . . . . . . . . . . . . . . . 341
Margherita Baldarelli
Agricultural Land Ownership as Food Sovereignty: The Case
of Slovakia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367
Katarı́na Dirgasová and Jarmila Lazı́ková
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Agricultural Law from a Global Perspective:
An Introduction
1 Introduction
Over the years, a growing number of scholars have been involved in different
aspects of agricultural law, which is an inspiring and challenging field.
It is challenging from a “technical” point of view because it embraces interna-
tional, national, and subnational norms and institutions. It also involves several
other related disciplines, such as commercial law, contract law, administrative law,
law on finance and credit, labor law, the legal framework of insurance, intellectual
property regulation, trade law, to mention just a few.1
It is also challenging from a “political” viewpoint because it tackles key complex
issues, such as the governance of the global food system, the maintenance of
agricultural natural resources, the world trade of commodities, the agribusiness
sector. As recently reported, “a strong agricultural economy is the key to a peaceful
society. Without a reliable supply of safe, affordable food, the future will be one of
famine, disease, and disorder on a global scale.”2 In fact, good agriculture policies
and the modernization of the agri-food sector play a huge role in one of the most
significant political and socioeconomic challenges that States are currently facing,
notably in the area of migration, which usually originates from rural regions.3
This branch of law is inspiring because it deals with fundamental rights and
values. It looks at the management of natural resources and securing the very basic
needs of human beings in every corner of the world. Agriculture is an economic
1
Hamilton (1990), p. 505, shares this view that the “the variety of issues implicated in a typical
agricultural relationship” make the study and practice of agricultural law challenging.
2
Jacobi and Andersen (2016), p. 178.
3
FAO (2016).
M. Alabrese (*)
DIRPOLIS - Institute of Law, Politics and Development, Scuola Superiore Sant’Anna, Pisa, Italy
e-mail: mariagrazia.alabrese@santannapisa.it
© Springer International Publishing AG 2017 1

M. Alabrese et al. (eds.), Agricultural Law, LITES – Legal Issues in
Transdisciplinary Environmental Studies, DOI 10.1007/978-3-319-64756-2_1
2 M. Alabrese
activity that not only produces food and fiber but also creates both tangible and
intangible values. Regulating agriculture also involves rural development and, in
most cases, the role of women and gender equality.4 It also means securing safe
food and water, protecting the environment, and preserving the landscape. As Neil
Hamilton wrote many years ago: “Agricultural lawyers play a fundamental role in
servicing the legal needs of the food and agricultural sector and in helping [nations]
craft the legal and institutional arrangements responsible for promoting a produc-
tive, profitable, and sustainable agriculture.” Indeed, recognizing that “the law is
what gives legs to policy,” he stressed the fundamental role that lawyers and legal
institutions can play in shaping the future of agriculture.5
Against this background, questions arise as to what the future of agriculture is
and what legal framework is appropriate. Defining the content of agricultural law is
urgently needed in the face of the dramatic changes that have taken place over the
last few years. The present chapter looks at the definition of agricultural law. It
describes the intersection of agricultural law with other related fields, such as food
and environmental law. Finally, it portrays the development and relation of agri-
cultural law to all the aforementioned issues and calls for the adoption a global
approach.
2 What Is Agricultural Law?
Defining “agricultural law” is not easy. The literature on the subject is vast and
cannot be reported in its entirety. This brief analysis presents some of the highlights
of the debate around the definition of agricultural law in order to set the scene for
the following chapters.
If agricultural law is described as the system of laws and principles regulating
agriculture, the first question that arises is what exactly agriculture is. Traditionally,
this question has been addressed in order to draw the boundaries for the application
of a set of exemptions and rules favoring the sector. The inclusion of an activity or
operation as agricultural resulted in the application of a more favorable legal
regime. With regard to the USA, for example, “An increasingly important issue
may be whether some food producing operations lose their status as agricultural if
they reach a certain size or are organized in certain ways.”6 This thus confirms the
link between agricultural status (in the specific case attached to the operator’s size
and organization) and the special discipline reserved for an economic activity. The
question as to the meaning of agriculture has also been triggered by the need to deal
with the legal framework of international agricultural trade. Smith stresses that it is
4
See IDLO (2016), a recent and interesting study on the role of law and policies in enabling gender
equality in rural contexts with regard to food security, land rights and agricultural development.
5
Hamilton (1993), pp. 211–212.
6
Hamilton (1993), p. 213.
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Agricultural Law from a Global Perspective: An Introduction 3
possible “to shift around between a number of different but sometimes related
meanings,” eventually focusing on the vision of “agriculture as the growth of food
products” and “as a promoter of broader goals,” as in the case of multifunctional
agriculture.7
The academic literature has debated the definition and the content of agriculture
extensively in defining agricultural law. Drawing the boundaries of the subject was
deemed as fundamental not only for economic and practical reasons (to identify the
cases when a producer could be subjected to protective treatment) but also due to
the emergence of a new field of law, separate from both civil and commercial laws.
Indeed, a lack of focus and precision could hinder the development of such a
process. The construction of an autonomous branch of law presupposes the exis-
tence of a robust apparatus of rules and principles organized in a systemic fashion.
In addition, it implies the recognition of appropriate specific features that could
distinguish it as a separate subject. Such recognition is, in turn, dependent on an
exact understanding of the agricultural sector.
2.1 Identifying the Meaning of Agricultural Law Through

the Definition of Agriculture
The French and Italian legal frameworks provide a fascinating definition of agri-
culture. It stems from a breakthrough theory developed in the 1970s by the Italian
scholar Antonio Carrozza8 and further investigated by Alfredo Massart,9 which was
transposed into a French piece of legislation in 1988.10 In 2001,11 it was incorpo-
rated into the Italian Civil Code article on the agricultural entrepreneur. According
to this theory, agriculture is made up of a set of activities devoted to the care and
development of an animal and/or vegetal biological life cycle, which depends on
the deployment of natural resources, such as land and water. This description of
agriculture was more developed and precise than the common one referring basi-
cally to the cultivation of the soil and the rearing of animals. On the one hand,
focusing on the care of the biological life cycle of living beings, both animal and
vegetal, it extended the range of activities included in the legal notion of agriculture
by including the growing of crops without the use of land (e.g., hydroponics) and
fish farming. It also considered fur or race horse farming as agriculture activities
7
Smith (2009), pp. 21–24.
8
The most elaborated version of the theory was published in 1975 though the author had been
presenting it at Congresses since 1972, see Carrozza (1975a).
9
Massart (1974).
10
France, Law 1202/1988, “L’adaptation de l’exploitation agricole a son environnement
economique et social.”
11
Article 2135 of the Italian Civil Code has been emended in 2001 by Legislative Decree
228/2001.
4 M. Alabrese
and not only the rearing of animals to provide food, wool, milk, which have
traditionally been included in the concept of agriculture due to their assumed link
to farmland. In the same vein, growing nonfood crops, such as cotton, flowers or
energy feedstock fit the definition of agriculture, as such activities consist in the
care and development of these plants. It is also worth noting that this theory carried
the risk that any activity connected to the development of living beings, as in the
case of bacteria for the pharmaceutical industry, could be labeled as agricultural and
regulated by agricultural law. In order to avoid this risk, the Italian legal definition
made it clear that the relevant activities had to be suitable for carrying out on the
land, although in the specific cases they were not exploiting the soil.12 Thus, when
the land was not suitable for breeding animals or growing plants, as in the case of
bacteria, the related activity was not deemed to be “agricultural.” The legal
definition of agriculture is also complemented by many other activities that can
be carried out by the agricultural entrepreneur, under certain conditions, under the
same legal treatment. These further activities, such as the processing and direct
selling of agri-food products, providing services (agro-environmental or more
“cultural” services, such as those related to hosting people on farms to educate
them about farming and the countryside), etc., which significantly broadened the
content of agricultural law, were coherent with the EU trend in agricultural policy,
as will be briefly described.
In the USA, scholars of agricultural law focused on the notion of agriculture,
echoing the biological life cycle theory. In the same fashion, they assumed that
“agriculture is an unusual if not unique industry in that it relies on the production of
living things. It is therefore vulnerable to natural processes and natural forces; it is
not truly under human control as it is inextricably intertwined with nature. This
gives the industry a special status [. . .].”13
2.2 A Second Pattern: Characterizing Agricultural Law

in Terms of Its Regulatory Schemes
An alternative approach to defining agricultural law without focusing on a legal

definition of agriculture is through the characterization of its regulatory schemes,
i.e. each set of rules applicable to a specific aspect of agri-food activities, such as
agricultural contracts, the legal system of the farmland, etc. This method has been
recently used by the Hungarian scholars dealing with agricultural law. In this case,
the objects listed to identify the content of agricultural law are agricultural holding,
agricultural producer, agricultural activity, agricultural product, foodstuff, rural
area.14 Here, the definition of agricultural law is completely focused on highlighting
12
See Costato (2003), pp. 3–4.
13
Schneider (2009), p. 2.
14
Raisz and Szilágyi (2012), p. 109 and Szilágyi (2009).
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the several sets of rules that can be ascribed to the agricultural system, without
much concern for the possible legal notion of agriculture. This pattern is also well
known in Italy as Carrozza developed it further in order to draw the boundaries of
agricultural law with a bottom-up approach.15 This consisted in identifying the
norms regulating the many stages of agricultural production in the national and
supranational legal systems, together with several other aspects of the agricultural
sector. The aim was to group them into coherent sets of rules that could represent
the backbone of agricultural law.
2.3 Agricultural Law as an Autonomous Branch of Law
The aforementioned Hungarian definition of agricultural law is of particular interest

in terms of the recent attempts to define agricultural law as a separate legal branch,
particular and original in its subject. In Hungary, this process was finalized in
2005 at the National Conference of Agricultural Lawyers, where a resolution was
adopted “on the Standard Conception concerning Agricultural Law as a Discipline
of Legal Education.”16
The same development has affected other countries and is a common feature of
agricultural law. In Italy, for example, the first academic journal completely
devoted to agricultural law (Rivista di Diritto Agrario) dates back to 1922, as
well as the first academic chair, which was established in Tuscany in the same
year (indeed, Italy is usually referred to as the cradle of agricultural law).17
Nonetheless, the academic discussion around the autonomy of the legal branch of
agricultural law was particularly controversial and survived up to the 1980s.
Looking at agricultural law from a global perspective, it is worth mentioning that
it is not always perceived as an autonomous branch of law. There are countries
where it is mainly studied as a field of land law, as in the UK,18 or within the wider
area of civil law, as in Spain.19 In the USA and in Latin American countries,
agricultural law is usually recognized as an autonomous branch of law. In the
United States, the development of agricultural law into an acknowledged field of
law started in the late 1970s.20 In Latin America, the discipline is very well
15
Carrozza (1975b).
16
Raisz and Szilágyi (2012), p. 107. With regard to Hungarian agricultural law, the emergence of a
liberalized agricultural sector was only possible in 1989/90 after many years of totalitarian
socialism.
17
See Zeledón Zeledón (2015).
18
See Rodgers (2016), one of the few books devoted to agricultural law in the UK that “is
principally a book about agricultural land and the law governing its tenure and use” (the Author
at 3).
19
In Spain agricultural matters are widely investigated by many scholars. For a view on agricul-
tural law in Spain, see Sánchez Hernández (2002) and Espı́n Alba and Vattier Fuenzalida (2005).
20
Hamilton (1990), p. 513.
6 M. Alabrese
developed, and there are often special agricultural tribunals, as in the cases of Costa
Rica, Bolivia, Panama, Mexico, and Venezuela.
The recognition of agricultural law as an autonomous branch of law has always
been considered as a significant step in its further evolution. With this objective in
mind, in 1988 a Worldwide Academic Union of Agricultural Lawyers (UMAU)
was established in Pisa (Italy) by a group of academics from Europe, Africa, and
South America.21 It enables scholars from all over the world to cooperate and share
experiences. It plays a central role in the study and further development of agricul-
tural law through a comparative approach, with a view to increasing understanding
around the globe and promoting relevant social research.
3 From “Food and Fiber Production” to a Broader Content
At the EU level, the definition of agriculture can be inferred from article 38(1) of
the Treaty on the Functioning of the European Union (ex article 32 TCE), according
to which“‘Agricultural products’ means the products of the soil, of stockfarming
and of fisheries and products of first-stage processing directly related to these
products.” In this definition, however, the emphasis is on the products rather than
the activities. Despite this, the content and scope of the regulation dealing with such
products are clear, and there is a hint of agricultural law from the EU perspective.
Things become more complicated with article 38(3), according to which Title III of
the Treaty, which is the Title devoted to agriculture (i.e., articles 39–44), applies to
the products listed in Annex I. Thus, while article 38(1) explains the meaning of
“agricultural products” through a broad definition, article 38(3) limits the applica-
tion of Title III (mainly related to competition and aids) only to certain products.
This statement is confusing for those who are seeking an EU legal definition of
agriculture, and clearly highlights all the limitations of listings when it comes to the
law. Indeed, on the one hand, the products listed in Annex I are not all the possible
products related to the soil, stock farming and fisheries: wood, for example, is not
included, which is not a matter of being a nonfood product, as tobacco and flax are
listed. On the other hand, the Annex includes food that is beyond a “first-stage of
processing.”22 Such “bias” in the Annex can be understood by considering that its
aim was not to provide a definition of agriculture. Rather, in order to design an
exceptional regime, it collected the main products that were traditionally produced
by the agricultural sectors in the first six Member States that founded the European
Economic Community (i.e., Belgium, France, Italy, Luxembourg, the Netherlands,
and West Germany). As far as the processed food products listed in the Annex are
concerned, their inclusion was due to the “close economic interdependence
21
It is still working and promotes agricultural law and its aims. See http://www.union-umau.org.
Accessed 15 December 2016.
22
See Manservisi (1990) and Costato (2003).
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between them and the basic products, so that it would not be justifiable to apply the
agricultural system to the basic products, while applying to the processed products
the general rules of the Treaty.”23 Moreover, as the EU regime is essentially market
oriented and generally related to the application of a special treatment, its focus is
on the products. It explains the reference to the “products of fisheries,” which are
the result of catching fish, i.e. not an agricultural activity, instead of the rearing of
fish, which consists in the care and development of a biological cycle.
The evolution of the EU policy on agriculture, which has been adding environ-
mental, ethical, and social aims to productive and economic ones, led to the focus
on the notion of “agriculture” in addition to “agricultural products.” Indeed, one of
the EU pieces of legislation establishing a pivotal review of the agricultural policy
described “agricultural activity,” for the purposes of the regulation, as “the produc-
tion, rearing or growing of agricultural products including harvesting, milking,
breeding animals and keeping animals for farming purposes, or maintaining the
land in good agricultural and environmental condition.”24 In this vein, the latest
regulation on the Common Agricultural Policy provides a more accurate definition,
stating that “‘agricultural activity’ means: (i) production, rearing or growing of
agricultural products, including harvesting, milking, breeding animals, and keeping
animals for farming purposes, (ii) maintaining an agricultural area in a state which
makes it suitable for grazing or cultivation without preparatory action going beyond
usual agricultural methods and machineries, based on criteria established by Mem-
ber States on the basis of a framework established by the Commission, or (iii)
carrying out a minimum activity, defined by Member States, on agricultural areas
naturally kept in a state suitable for grazing or cultivation.”25 This definition is only
one of the signals showing how “the European Model of Agriculture” has broad-
ened its objectives over the years. Starting from late 1990s, it has decisively shifted
towards “multifunctionality,” as Cardwell clearly explains in a seminal book on the
subject.26 “Multifunctionality,” which has developed within an international frame-
work, refers to the idea that agriculture jointly produces multiple commodity and
non-commodity outputs, some of which exhibit the characteristics of externalities
or public goods. According to this vision, agriculture fulfills several functions
23
CJEU, Case C-185/73 Hauptzollamt Bielefeld v K€ onig [1974], para 12.
24
Article 2(c), Regulation (EC) 1782/2003 of 29 September 2003 establishing common rules for
direct support schemes under the common agricultural policy and establishing certain support
schemes for farmers and amending Regulations (EEC) 2019/93, (EC) 1452/2001, (EC) 1453/2001,
(EC) 1454/2001, (EC) 1868/94, (EC) 1251/1999, (EC) 1254/1999, (EC) 1673/2000, (EEC) 2358/
71 and (EC) 2529/2001, OJ [2003] L 270.
25
Article 4(c), Regulation (EU) 1307/2013 of the European Parliament and of the Council of
17 December 2013 establishing rules for direct payments to farmers under support schemes within
the framework of the common agricultural policy and repealing Council Regulation (EC) 637/
2008 and Council Regulation (EC) No 73/2009, OJ [2013] L 347.
26
Cardwell (2004). The shift started in 1997 with “Agenda 2000,” which was also due to the need
to comply with the WTO requirements, especially those in the “Agreement of Agriculture”; see
Borghi (2004).
8 M. Alabrese
related to rural development, the environment, food safety, food quality, animal
health, and welfare. “The introduction of the concept of multifunctionality [. . .]
recognises that beyond its primary function of supplying food and fibre, agricultural
activity can also shape the landscape, provide environmental benefits such as land
conservation, the sustainable management of renewable natural resources and the
preservation of biodiversity, and contribute to the socio-economic viability of many
rural areas.”27 One of the consequences of this major shift has been to move the
attention from a “produce more for less (money)” approach to a “produce more with
less (resources)” approach. It also highlighted the particular essence of agriculture
as being intertwined with the ecosystems, its unique role in responding to funda-
mental needs by providing food, and its overall contribution to a human-rights-
oriented development.
That said, it is not surprising that US scholars have witnessed a similar trend.
Schneider defines agricultural law as “the study of the network of laws and policies
that apply to the production, marketing, and sale of agricultural products, i.e., the
food we eat, the natural fibers we wear, and increasingly, the bio-fuels that run our
vehicles.”28 However, she firmly calls for a reconsideration of the framework of the
subject, concluding that “‘Agricultural law’ should be recast as the law of food,
farming, and sustainability, with the sustainable production and delivery of healthy
food to consumers as its central goal.”29 Such a reframing underlies the extension of
the content of agricultural law by focusing on the many “functions” that the sector
can fulfill.
4 The Shape of Current Agricultural Law
The shape of current agricultural law could be described as the complex and
dynamic set of laws, regulations, policies, and principles established under
multilevel authorities, both public and private, governing the agricultural system
and its intersection with food and environmental systems.
The reference to systems instead of activities helps in emphasizing the multi-
faceted structures involved, their socioeconomic outcomes, and complex links. The
system approach underlines the dependence of agricultural productivity on the state
of natural resources, which, in turn, is linked to the environmental impacts of food-
related or energy-related activities. In addition, this approach sheds light on the web
of needs and aspirations that are dependent on the availability of, and access to,
food. The availability of, and access to, food are, in turn, dependent on agricultural
productivity, but they also raise other issues, such as trade and rural development
policies, which need to be taken into account within the system approach.
27
See OECD (2001).
28
29
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The reference to a multilevel legal framework refers to international, regional,

national and local principles and regulations forming the law of the agricultural
system. The public and private entities referred to as sources of the relevant rules
reflect the growing phenomenon of coregulation in the agri-food sector, which
involves public and private actors and usually results in private standards and good
practices.30
In conclusion, three main remarks can be made regarding the features of
“modern” agricultural law. The first is related to the core of the subject. It can no
longer be asserted that the only objective of agricultural law is to regulate the
produce and market of food and fiber.31 The “classical” concept of agricultural law
revolved chiefly around the regulation of farmland. From the 1990s, environmental
concerns and the rapid industrialization of agriculture have added new subjects to
the field of agricultural law.32 As soon as social, ethical, and environmental factors
were given prominence, several new issues arose. The worldwide effects of land
use patterns and the limits of natural resources started to be confronted. The issue of
food security and its intersection with international trade trajectories was at stake.
The result of this development of agricultural law contributed to the widening of the
legal fields involved in the regulation of the sector, which, in the Introduction to this
chapter, is characterized as one of the “challenges” posed by this branch of law.
Monteduro argues that this feature represents a “deconstruction/fragmentation of
the complex universe of rus into elementary and disjointed legal particles.”33
Agricultural lawyers would rather address it as a natural consequence of the
growing complexity of the matter. They would characterize the several sets of
rules concerned as building blocks of the agricultural legal system and would deal
with them with the aim of coherently systematizing the norms. Indeed, the links
between upstream and downstream activities with agriculture, as well as its multi-
ple functions, create a continuum in the relevant legal framework rather than a
fragmentation. This thus makes it difficult to address the agricultural sector without
handling several fields of law.34
The second remark relates to the intersection of agricultural law with closely
connected branches of law, such as food law and environmental law. The product of
this intersection constitutes a significant part of agricultural law. This part some-
times stands with the labels of agri-food law and agri-environmental law in order to
emphasize the overlapping areas of the legal frameworks governing agriculture, the
environment, and the food system. In the case of agri-food law, the relationship
with agricultural law looks stronger since “the agricultural production stage repre-
sents a necessary stage in the food process”35 and a large number of food
30
Garcia Martinez et al. (2007) and Busch (2011).
31
Hamilton (1990), p. 503.
32
Hamilton (1993), p. 211.
33
Monteduro (2015), p. 65.
34
Jannarelli (2003), p. 377.
35
Russo (2012), p. 142.
10 M. Alabrese
regulations are applicable to the primary production. That said, it is worth stressing
that agriculture also produces nonfood products, which means that agricultural law
cannot be dissolved into food law. As far as environmental law is concerned, there
are many links between agriculture, natural resources, and climate change.36 The
nexus is well known between the need for agriculture to protect natural resources
that provide the basis for continued agricultural productivity and the farming
practices that result in the contamination and degradation of the environment and
ecosystems. The overlap is often referred to as agri-environmental law in order to
identify the intersection, i.e. the cases when both environmental rules regulate
agricultural pollution and agricultural rules regulate environmental protection.
Agricultural lawyers treat this convergence zone, which includes, inter alia,
water, bioenergy, and pesticide regulations, without usually covering the many
environmental policies not related to farming.
The third and final remark on current agricultural law focuses on its global
dimension. The multifaceted features of the food and agriculture system, as well as
the recent phenomenon of the cross-border fragmentation of production character-
izing the agri-food chains, highlight the need to adopt a globalized approach. The
aforementioned “political challenges” such as food security, environmental protec-
tion, climate change, and their strong ties with hot international issues such as
migration, peace, and political stability are all indicators of the economic, social,
and political pressures that current agricultural law and policy are facing world-
wide. These pressures require a comprehensive and global vision. This picture
presents a fundamental challenge to agricultural lawyers. They need to understand
the complexities of cross-border agricultural regimes, to map out the hottest issues
at stake, and to address the rapidly growing phenomena affecting world agriculture
and, consequently, many fundamental rights. Agricultural lawyers are required to
provide an adequate and comprehensive conceptual tool to address the growing
analytical complexity of the global food system and the cross-border effects of the
agricultural models. They also need to identify the interests, values, and aims that
shape global agricultural law. This could entail a reconceptualization using a
teleological approach, that is, describing agricultural law by the globally valid
purposes it serves, such as, among others, development and food security. This
reconceptualization also implies drawing up comprehensive global principles,
which capture the universal essence of the matter and which inform the multilevel
sets of laws and regulations that govern the agri-food systems all over the world.
Despite the fact that different agricultural models require different national and
regional laws and policies, the aforementioned dramatic cross-border developments
no longer allow domestic laws to exist in isolation. These developments present
pressing issues of universalism that requires a principle-based framework for
agriculture focused on the need to respond to the global political challenges of
the agri-food system.
36
Monteduro et al. (2015): The relationship between agricultural law and environmental law is
dealt with in some detail by several authors in relation to their national systems.
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References
Borghi P (2004) L’agricoltura nel trattato di Marrakech. Prodotti agricoli e alimentari nel diritto
del commercio internazionale. Giuffré, Milano
Busch L (2011) Quasi-states? The unexpected rise of private food law. In: der Meulen BMJ V
(ed) Private food law. Governing food chains through contract law, self-regulation, private
standards, audits and certification schemes. Wageningen Academic Publishers Books,
Wageningen, pp 51–73
Cardwell M (2004) European model of agriculture. Oxford University Press, Oxford
Carrozza A (1975a) Problemi generali e profili di qualificazione del diritto agrario. Giuffré,
Milano
Carrozza A (1975b) L’individuazione del diritto agrario per mezzo dei suoi istituti. Rivista di
diritto civile 21:107–178
Costato L (2003) Trattato breve di diritto agrario italiano e comunitario. Cedam, Padova
Espı́n Alba I, Vattier Fuenzalida CS (2005) Derecho Agrario. Reus Editorial, Madrid
FAO (2016) Migration, agriculture and rural development. Addressing the root causes of migra-
tion and harnessing its potential for development. FAO, Rome
Garcia Martinez M et al (2007) Co-regulation as a possible model for food safety governance:
opportunities for public–private partnerships. Food Policy 32(3):299–314
Hamilton N (1990) The study of agricultural law in the United States: education, organization and
practice. Arkansas Law Rev 43:503–522
Hamilton N (1993) Feeding our future: six philosophical issues shaping agricultural law. Nebraska
Law Rev 72(1):210–257
IDLO (2016) Women, food, land: exploring rule of law linkages using law to strengthen food
security and land rights for women. IDLO, Rome
Jacobi D, Andersen C (2016) Agriculture and the law: can the legal profession power the next
green revolution? Drake J Agric Law 21(2):177–192
Jannarelli A (2003) Il diritto agrario tra agricoltura e alimentazione: dal linguaggio dei problemi ai
problemi del linguaggio. In: Rook Basile E, Germanò A (eds) Agricoltura e alimentazione tra
diritto, comunicazione e mercato. Giuffrè, Milano, pp 369–380
Manservisi S (1990) Seta, cotone, sughero e legno e l’ Allegato II del Trattato CEE. Rivista di
Diritto Agrario 1:136–168
Massart A (1974) Contributo alla determinazione del concetto giuridico di «agricoltura». Rivista
di diritto agrario 3:312
Monteduro M (2015) From agroecology and law to agroecological law? Exploring integration
between Scientia Ruris and Scientia Iuris. In: Monteduro M et al (eds) Law and agroecology. A
transdisciplinary dialogue. Springer, Heidelberg, pp 57–86
Monteduro M et al (2015) Law and agroecology. A transdisciplinary dialogue. Springer,
Heidelberg
OECD (2001) Multifunctionality. Towards an analytical framework. OECD Publishing, Paris
Raisz A, Szilágyi JE (2012) Development of agricultural law and related fields (environmental
law, water law, social law, tax law) in the EU, in countries and in the WTO. J Agric Environ
Law 7(12):107–148
Rodgers C (2016) Agricultural law. Bloomsbury Publishing, West Sussex
Russo L (2012) Agricultural law and food law. In: Costato L, Albisinni F (eds) European food law.
Cedam, Padova, pp 141–159
Sánchez Hernández A (2002) El derecho agrario en Espa~ na prespectiva histórica y prospectiva. In:
Francisco Yagüe L, Herrera Campos R (eds) Agricultura ante el tercero milenio. Dikynson,
Madrid, pp 1107–1138
Schneider S (2009) What is agricultural law? Agricultural law update. http://ssrn.com/
abstract¼1331422. Accessed 20 Oct 2016
Schneider S (2010) A reconsideration of agricultural law: a call for the law of food, farming, and
sustainability. William Mary Environ LawPolicy Rev 34(3):935–963
12 M. Alabrese
Smith F (2009) Agriculture and the WTO. Towards a new theory of international agricultural trade
regulation. Edward Elgar, Celtenham
Szilágyi JE (2009) The dogmatics of agricultural law in Hungary from an aspect of EC law. Eur
Integr Studi (University of Miskolc) 7(1):41–55
Zeledón Zeledón R (2015) Derecho Agrario Contemporáneo. Editorial Investigationes Juridicas S.
A, San Jose
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Part I
Environmental Protection and Food
Security at the Cross-Roads with
Agricultural Law
Sustainable Agricultural Production,
Environmental Sustainability and Food
Security: How to Frame the Legal Intervention
Elisa Morgera and Andrea Saba
1 Introduction1
What is the role of law in nurturing sustainable development? And more specifi-
cally, what is the role of law to support sustainable agricultural production, as well
as agricultural research and development practices, that can contribute to environ-
mental sustainability and the realisation of the right to food? All the chapters in this
section address these complex questions and serve to point out to the different
approaches and areas that the law can focus on. All the chapters also discuss, to
different extents, the progress achieved in EU law, through the Common Agricul-
tural Policy, whose successive waves of legislation have allowed learning by doing
but also continued to fuel dissatisfaction. These timely contributions therefore
underscore the need for legal analysis on how to effectively frame agri-
environmental approaches while encouraging and/or rewarding farmers for their
contribution to environmental sustainability and food security.
In this connection, it seems timely to reflect on the role of the Convention on
Biological Diversity (CBD)2 and of the guidance adopted by its 196 Parties in
December 2016 on mainstreaming biodiversity in the agricultural sector3 in order to
inspire further legal research in this area. The CBD guidance calls for promoting
and supporting sustainable agricultural production through the enhanced use of a
1
This section is written by Elisa Morgera.
2
Convention on Biological Diversity (CBD) 1992, 1760 UNTS 79.
3
CBD Decision XIII/3 (2016).
E. Morgera (*)
University of Strathclyde, Glasgow, UK
e-mail: elisa.morgera@strath.ac.uk
A. Saba
e-mail: andrea.saba@santannapisa.it

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16 E. Morgera and A. Saba
diverse range of well-adapted crops and livestock, and their varieties and breeds,
and of associated biodiversity in agricultural systems, including pest-control organ-
isms and soil organisms that promote nutrient cycling, thereby reducing or
replacing the need for chemical inputs. It further recommends promoting and
supporting the development, transfer and use of technological innovation to help
reduce the negative impacts of agriculture and the integrated, efficient and sustain-
able management of energy, water and soil resources. It also encourages reducing
loss and waste at all stages of production and consumption in the food system,
including reducing post-harvest losses, maintaining genetic diversity of resources
for food and agriculture and their landraces and wild relatives, as well as supporting
the conservation and sustainable use of pollinators,4 including through pesticide
risk reduction strategies and risk assessment procedures for pesticides and living
modified organisms. The recent CBD guidance therefore provides a wide-ranging
set of standards against which to assess the comprehensiveness and ambition of
regional and national legal frameworks for sustainable agriculture.
Furthermore, the CBD guidance on mainstreaming biodiversity in the agricul-
tural sector is noteworthy from a human rights perspective, even if it shies away
from adopting explicit human rights language. It makes reference to the promotion
of an ‘equitable and participatory approach to the management and restoration of
critical ecosystems’ and the recognition of traditional knowledge and cosmovisions
of indigenous peoples and local communities. It also points to the development of
legal frameworks or administrative measures for land use to enhance the conser-
vation and sustainable use of biodiversity while recognising the rights of indigenous
peoples and local communities to lands and resources. It further calls for
recognising the contributions of the collective actions by indigenous peoples and
local communities to biodiversity conservation and sustainable use in the agricul-
tural sector, promoting community and family farming by indigenous peoples and
local communities, and protecting their traditional and established land rights and
tenure. The guidance also indicates the need for prior informed consent and fair and
equitable benefit sharing in relation to the use of the traditional knowledge of
indigenous peoples and local communities for the sustainability of agriculture, as
well as their participation in land-use planning and zoning.5 Another recent deci-
sion adopted by the CBD Parties complements these recommendations, calling for
developing incentives for farmers, indigenous peoples and local communities to
protect pollinators and pollinator habitats, for example through benefit-sharing
schemes, including payments for pollinator services schemes, as well as removing
or reducing perverse incentives causing the destruction of pollinator habitats, the
overuse of pesticides and the simplification of agricultural landscapes and produc-
tion systems.6
4
5
6
Sustainable Agricultural Production, Environmental Sustainability and Food. . . 17
As recommended in the 2030 Agenda on Sustainable Development,7 CBD Parties

have reflected ‘different approaches, visions, models and tools’ to biodiversity con-
servation and sustainable use in their recommendations on mainstreaming biodiver-
sity in the agricultural sector. These models include both market-based approaches
(notably, certification and natural capital accounting) and non-market-based
approaches (inspired by a vision of living in harmony with nature and reliance on
traditional knowledge). It is with particular regard to the latter that more legal research
is needed. First of all, to what extent is the CBD guidance concerning indigenous
peoples and local communities applicable to farmers in the European continent? And
second, how can the law effectively support a respectful and constructive dialogue
that leaves room for non-mainstream views of nature and sustainable development
and supports the integration of ‘modern’ science and traditional knowledge?8
2 The Structure of the Part9
The goal of pursuing sustainable agriculture has informed the EU Common Agri-
cultural Policy with the aim of supporting long-term productivity, as well as food
security, as Alicia Epstein explores in her paper ‘The Ecological and Perpetual
Dimensions of European Food Security: The Case for Sustainable Agriculture’. In
particular, her contribution assesses EU agri-environmental measures against the
paradigm of sustainable development, thus investigating the extent to which
resulting policies are able to address the multifaceted challenges posed by food
security. The author argues that sustainable agriculture needs to be
re-conceptualised through a rediscovery and prioritisation of an ecological and
perpetual dimension of food security under the EU Common Agricultural Policy.
Within the perspective of sustainable agriculture, ensuring access to plant genetic
resources for food and agriculture plays a key role in tackling food security, climate
change and biodiversity. In her paper on ‘International Law on Plant Genetic
Resources for Food and Agriculture: Towards a New Balance?’ Anna Micara
explores the provisions in bilateral and regional trade agreements concerning intel-
lectual property rights and genetic resource protection with the aim of evaluating the
extent to which such provisions may detrimentally impact access to plant genetic
resources. In this line, the legal framework emerging from bilateral and regional trade
agreements is assessed against other international instruments; in particular, the author
focuses on the potential impact of the draft UN Declaration on the rights of peasants
and other people working in rural areas. Such Declaration may, if adopted, provide a
significant contribution towards a more balanced system, thus strengthening the
human rights nature of the right to seeds and to biological diversity for peasants.
7
Transforming our world: the 2030 Agenda for Sustainable Development (UN Doc A/RES/70/1,
25 September 2015).
8
See Morgera (2015).
9
This section is written by Andrea Saba.
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18 E. Morgera and A. Saba
The role of law in supporting sustainable agricultural production, as well as

environmental sustainability, is further analysed in the paper by Andrea Saba,
entitled ‘Results-based Agri-environmental Schemes for Delivery Ecosystem Ser-
vices in the EU: Established Issues and Emerging Trends’. The paper draws our
attention to the emerging implementation of results-based schemes to protect and
enhance the delivery of ecosystem services from agricultural land. In such schemes,
farmers are rewarded not for performing activity-based standards but for achieving
set environmental outcomes. However, a results-based approach has a range of
characteristics that may complicate the legal intervention. In this connection,
Andrea Saba attempts to provide a legal understanding of such schemes as a
mechanism for promoting ecosystem benefits in Europe, thus contributing to the
long-lasting debate on the complex linkage between agriculture and environment.
Agricultural ecosystems are both providers and beneficiaries of ecosystem
services.10 The production of ecosystem services from an agricultural law perspec-
tive was recognised through the widely debated concept of multifunctional agri-
culture.11 Such an acknowledgment is finally analysed within the specific case of
Switzerland in the paper of Christa Preisig, entitled ‘The Legal Instruments for
Agri-environmental Goals and the Influence of International Factors: The Case of
Swiss Agricultural Policy’. Over the past two decades, Switzerland has been
addressing the key challenge of finding a balance between the interest of farmers
toward an increased agricultural production and a general interest in enhancing
environmental sustainability. Such an effort has been particularly reflected in the
amendment of the Swiss constitutional provisions on agriculture, in order to allow
lawmakers to implement a range of economic support measures for ecological
targets. Against this background, international law has played a relevant role. The
author explores the extent to which international factors are influencing Swiss agri-
environmental targets.
References
Buia G, Antonucci M (2015) The Rural Development Programme (RDP) as a strategic tool for
linking legal and agroecological perspectives. In: Monteduro M et al (eds) Law and agroecol-
ogy. A transdisciplinary dialogue. Springer, Berlin/Heidelberg, pp 151–182
Cardwell M (2004) The European model of agriculture. Oxford University Press, Oxford
Morgera E (2015) Fair and equitable benefit-sharing at the crossroads of the human right to science
and international biodiversity law. Laws 4:803–831
Power AG (2010) Ecosystem services and agriculture: tradeoffs and synergies. Philos Transac R
Soc B 365:2959–2971. http://rstb.royalsocietypublishing.org/content/royptb/365/1554/2959.
full.pdf. Accessed 5 July 2016
10
See, among others, Power (2010).
11
See, among others, Cardwell (2004) and Buia and Antonucci (2015).
The Ecological and Perpetual Dimensions
of European Food Security: The Case
for Sustainable Agriculture
Alicia Epstein
1 Introduction
It appears likely that the world will continue to experience a convergence of

multiple biophysical, biochemical and societal changes that have the potential to
impact greatly on food security in the future.1 For instance, the global population is
expected to swell by almost one-third by 2050,2 and combined with overall
increases in wealth (especially in developing countries), some have estimated that
the actual demand for food could increase by up to 100% before the end of the
century.3 However, the ability to meet this growing demand under the current
trajectory will be severely limited by a number of factors, including potentially
irreversible climate change,4 loss of biodiversity5 and the lack of available land
suitable for agricultural expansion,6 to name a few. Moreover, the situation is
further compounded by the sheer environmental impact of modern agriculture,
which has the potential to further exacerbate climate change7 and has indeed
already been responsible for a considerable share of the biodiversity loss that has
occurred during the past century.8 In other words, the externalities of agriculture are
no longer limited to bringing about societal instability and collapse, as was the case
1
Godfray et al. (2010), p. 812.
2
Andreev et al. (2013), p. 4.
3
Tilman et al. (2011), p. 20261.
4
Kovats et al. (2014), pp. 1267–1326.
5
European Environmental Agency (2015), p. 2.
6
The Royal Society (2009).
7
International Panel on Climate Change (2014), p. 40.
8
A. Epstein (*)
School of Law, University of Leeds, Leeds, UK
e-mail: A.A.Epstein@leeds.ac.uk

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20 A. Epstein
in pre-industrial times. Rather, recent studies indicate that there is ample reason to
believe that the pervasive effects of ‘conventional’ agriculture have been extended
to include the disruption of the very planetary systems and processes that have
enabled agriculture to flourish through the ages.9
There has, then, perhaps never been more pressing reason to ensure the sustain-
ability of agricultural systems and to consider the role of farming in preserving the
ecological resource base that current and future generations depend on for food
security.10 In the European context, the need to pursue sustainable agriculture was
definitively acknowledged in the Community’s fifth environmental action
programme (EAP), which stressed that the Common Agricultural Policy (CAP)
should strike a more sustainable balance between agricultural activity and the
natural resources of the environment.11 More importantly, the EPA also provided
a fundamental endorsement of the sustainable development paradigm, which has
been central in defining the environmental scope of CAP objectives and legal
instrument ever since.12
Yet more than two decades after the adoption of sustainable development as the
guiding growth paradigm, the ecological effects of agriculture remain significant,
while reductions of its externalities continue to be incrementally integrated and
pursued by the EU.13 In other words, although certain improvements have been
made by successively ‘greening’ the CAP through the process of environmental
policy integration (EPI), many aspects of European agriculture continue to display
unsustainable outcomes given their negative effects on the ecological systems,
services and processes that enable food cultivation and production.14
Against this background, the present paper explores the objective of sustainable
agriculture under the CAP and its crucial role for ensuring long-term food security
for the benefit of a growing global population. In doing so, it seeks to add to the
current debate by critically assessing the impact of the sustainable development
paradigm upon the framing of the agri-environmental measures that have so far
been pursued to this end and the extent to which this framework can be expected to
provide meaningful solutions to the mounting challenges to future food security.
The relevance of this discussion has recently been carried forward in the context of
the 2013 CAP reforms, which delivered the latest in a long line of measures aimed
at greening the policy and reducing the negative externalities of European agricul-
ture. These were explicitly introduced to give expression to the underlying principle
of sustainable development, but important questions remain as to their ability to
9
Rockstr€om et al. (2009).
10
Foley (2011), p. 62.
11
European Community (1993), p. 37.
12
European Commission (1999), p. 6.
13
14
For instance, with regard to the integration of water policy concerns. See European Court of
Auditors (2014).
The Ecological and Perpetual Dimensions of European Food Security: The Case. . . 21
provide ecologically meaningful and sustainable solutions to the aforementioned

challenges.
The first part considers recent approaches to food security and the extensive
impact that these have had on the formulation of contemporary agricultural poli-
cies. In particular, it highlights that recognised definitions of food security have
overwhelmingly focused on supply and pricing policies as fundamental pillars of
national and international approaches to food security. In the European context, this
has especially induced production and land management practices that have had
extensive ecological implications. The second part will, therefore, consider how the
CAP objective of sustainable agriculture has been formulated in response to these
externalities. In particular, it looks at how the sustainable development paradigm
has impacted upon the policy formulation of sustainable agriculture and considers
some of the main CAP instruments that have been adopted in pursuit of this
objective. The third—and final—part explores the need to reconceptualise the
meaning of sustainable agriculture and argues for the importance of rediscovering
and prioritising the ecological and perpetual dimensions of food security under
the CAP.
2 Food Security
The following subsections consider some of the overarching developments that

have influenced policy approaches to food security in recent decades before explor-
ing the particular framework of the CAP and the ecological impacts of policies past
and present. The aim is to provide an initial layer of discussion concerning the
conceptual and legal frameworks that have defined food security as the primary
objective of European agricultural policy.
2.1 International Definitions
From a legal perspective, a precise meaning of food security is not entirely

straightforward to discern. In the European context, for instance, the treaties do
not provide a definition of this central policy objective, and it is instead necessary to
look to multidisciplinary literature, as well as international agreements and policy
documents to aggregate an initial definition of the concept. However, approaches to
food security have varied considerably over the years, and it should be noted from
the outset that there exists no universally accepted definition of the concept.15
15
Sage (2002), pp. 128–129.
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22 A. Epstein
Although the first concerted efforts to deal with food security took place in the
1930s under the auspices of the League of Nations,16 it was not until the 1974
World Food Conference that the United Nations (UN) attempted to provide an
internationally endorsed definition of the concept. At that time, the global food
system was experiencing its worse crises since the end of the Second World War,
after decades of relative market stability and growth.17 A number of converging
events, including market volatility, low crop yields and famine in some parts of the
world, were credited with creating this instability18 and, importantly, also served to
highlight the effects that disruptions on the global level could have on food security
on the regional, national and local levels and vice versa.19 In response, the World
Food Conference delivered the first major international definition of the concept,
according to which food security entailed ‘The availability at all times of adequate
world food supplies of basic foodstuff . . . to sustain a steady expansion of food
consumption . . . and to offset fluctuations in production and prices’.20 Importantly,
this definition placed considerable weight on the supply of food, as well as the need
to ensure the stability of food prices for the purpose of expanding food consump-
tion. Consequently, Mechlem has argued that ‘the focus of the debate was on
strengthening food production to increase availability and stability of world food
supplies of basic foodstuffs . . . to meet increasing demands’.21 However, this
enunciation failed to include a number of crucial dimensions to food security,
such as the role of food safety and issues of access.22 And, it follows, that
subsequent definitions have attempted to incorporate these aspects, to one extent
or another.23 For instance, the Food and Agricultural Organization (FAO) expanded
its own definition of food security in 1983 to reflect this shortcoming by adding that
food security included ‘Ensuring that all people at all times have both physical and
economic access to the basic food that they need’.24 Likewise, the importance of
individual and household access was subsequently reflected in the 1996 UN World
Food Summit, which adopted a considerably more complex definition than that
expounded upon in 1974 and remains one of the most oft-cited definitions to date.
According to this, ‘Food security is when all people . . . have physical and economic
access to sufficient, safe and nutritious food to meet their dietary needs and food
16
See for instance League of Nations (1973).
17
Maxwell (1996), p. 156.
18
Stringer (2002).
19
McDonald (2010).
20
United Nations (1975).
21
Mechlem (2004), p. 633.
22
See for instance: Maxwell and Smith (1993); Sen (1981, 1977). Sen is largely credited for
theorising the key question of access, but an overview of earlier literature shows that these
questions had been posed by a number of nutritional scientists in the 1970s. See for instance
Berg (1973) and Levinson (1974).
23
Clay (2002), p. 2; Maxwell (1996), pp. 169–170.
24
It added that food security included ‘Ensuring that all people at all times have both physical and
economic access to the basic food that they need’; see Food and Agricultural Organisation (1983).
preferences for an active and healthy life’.25 Definitely, the 1996 Declaration
expanded the definition of food security to include the important dimensions of
access to food and food safety.26 For instance, it underscored that ‘constraints on . . .
incomes to purchase food . . . prevent basic food needs from being fulfilled’.27 This
increased focus on micro-level aspects of food security has also been particularly
instrumental in understanding the key role of individual and household access and
entitlement to food.28 Thus, it should be noted from the outset that although the
focus here is on the production-related aspects of agriculture under the CAP, the
latter merely represents one part (albeit a major one) of the food security matrix,
whereas food security on the individual level depends on additional factors that are
beyond the scope of the present discussion. Notwithstanding the increased attention
to these dimensions of food security, however, international approaches and defi-
nitions have continued to hinge strongly on maintaining adequate food supplies, as
well as ensuring that these be subject to pricing policies that make them accessible
and affordable. 29 In the European context, this has largely been pursued through a
complex combination of subsidies and other market measures, which have had a
considerable impact on production and management practices in EU Member States
(MS). The remainder of this section explores some of the outcomes that have
resulted from such policy mechanisms under the CAP.
2.2 Food Security Under the CAP: Objectives and Outcomes
Food security has, in one way or another, been at the heart of the CAP since it was
first introduced in 1962. Indeed, in the aftermath of the Second World War, the
CAP was instrumental in bringing about a turnaround of European agriculture, from
being supplemented by food aid to self-sufficiency in a range of staple products.30
Thus, much like the international definitions and approaches described above, food
security has widely been perceived to depend on significantly increasing agricul-
tural output and the formulation of market measures aimed at guaranteeing the
income of farmers, as well as ensuring affordable prices for consumers. In short, the
understanding was that food security could be ensured within (what was then) the
common market of the European Economic Community (EEC), by maintaining
high levels of productivity.
25
Food and Agricultural Organisation (1996), at 1.
26
Zhang (2004), p. 266.
27
28
One of the most oft cited pieces of work in this field is Sen (1981). However, the link between
food security and individual access has long been stressed by other economists within context of
nutrition. See for instance Joy (1973) and Levinson (1974).
29
30
Shaw (2007), p. 13.
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24 A. Epstein
This narrow focus on supply and pricing can be gleaned from the treaty chapter
on agriculture, which has remained largely unchanged since it was first introduced
by the 1957 Treaty of Rome. In particular, Article 39(1) EEC (now Article 39
(1) TFEU) specified that the objectives of the agricultural policy was
(a) to increase agricultural productivity by promoting technical progress and by
ensuring the rational development of agricultural production and the optimum
utilisation of the factors of production, in particular labour;
(b) thus to ensure a fair standard of living for the agricultural community, in
particular by increasing the individual earnings of persons engaged in
agriculture;
(c) to stabilise markets;
(d) to assure the availability of supplies;
(e) to ensure that supplies reach consumers at reasonable prices.31
One of the main effects of the early CAP was its propensity to encourage
production, by means of guaranteed farm incomes and market measures.32 Thus,
together with technological advancements and extensive funding, this paved the
way for increased intensification and specialisation of agricultural production. By
the mid 1980s, the strong financial incentive to produce had resulted in vast
surpluses for a number of agricultural commodities. For instance, outputs of beef,
veal, pig meat, cereals, sugar, wine, eggs and poultry were all estimated to be
beyond the level required for self-sufficiency within the Community.33 Moreover,
at this point, the CAP budget had reached an all-time high by accounting for almost
70% of EC expenditure.34 The effect, according to Kay, was that ‘price support
drove up production, which drove up surpluses, which drove up the budget costs’.35
This has consequently prompted some to argue that due to the seemingly economic
illogic of the CAP, its main purpose could not possibly have been to ensure food
security but must instead have been to secure the income of the farming
community.36
In addition to the various socio-economic effects and costs, this production-
oriented approach to food security also entailed unprecedented environmental
implications.37 The historical effects of agricultural intensification have been both
complex and diverse, with the obvious implication that it is impossible to provide a
comprehensive account of its impacts within the scope of the present discussion.
Notwithstanding this limitation, however, it is necessary to consider some of these
outcomes for the purpose of the current discussion. In particular, the intention is to
31
Article 39 EEC.
32
Elton (2010), pp. 108–109.
33
34
European Commission (2011b), p. 7.
35
Kay (2006), p. 84.
36
Rieger (2005).
37
See for instance European Environmental Agency (2003).
highlight how previous approaches to food security have secured abundant food
supplies at the partial expense of the very resources that enable long-term food
security.
2.3 The Ecological Effects of Early Approaches to Food

Security
As pointed out in the Community’s very first Environmental Action Programme

(EAP), an initial source of environmental concern related to the polluting effects of
inputs such as insecticides, herbicides and fertilisers.38 Indeed, the unprecedented
increases in agricultural productivity that occurred since the middle of the twentieth
century were extensively attributed to the use and development of these inputs. And
estimates indicate that they continue to play a significant role in maintaining yield
levels currently enjoyed.39 In addition to high yields, however, they have obsti-
nately been recognised for their contribution to the pollution of natural waterways
through eutrophication,40 as well as their risks to public health through the pollution
of groundwater, which remains an important source of drinking water within the
EU.41 In particular, such pollution has been overwhelmingly associated with the
excessive use of nitrogen fertilisers, as well as the subsequent mismanagement of
waste and slurry.42
Agricultural intensification has also been linked to increased soil degradation
and erosion, largely as a result of overgrazing and other practices linked to livestock
production.43 Although the extent of soil degradation varies considerably between
MSs, the Commission has highlighted that nearly half of European soils are
estimated to ‘face problems of soil quality, evidenced by low organic matter and
nearly one quarter suffer from moderate to high erosion’.44 To put this into
perspective, the latter has described the process as one that takes ‘centuries to
build up a mere centimetre of soil but, if mistreated, soil can be blown or washed
away in a few seasons’.45 Even though these risks have partly been addressed
through current measures,46 it may be noted that the EU has yet to put in place
38
39
Stewart et al. (2005), p. 1.
40
According to data produced by the European Commission some 33% of all monitoring stations
in the EU show signs of eutrophication. See European Commission (2011a).
41
Jack (2009), p. 38.
42
43
Ibid., at 39.
44
45
European Commission (2011e).
46
In particular under the cross-compliance regime that is discussed below.
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26 A. Epstein
specific legislation aimed at soil protection, which has attracted criticism from
organisations such as the European Environmental Agency (EEA) in the past.47
Perhaps the most extensive impacts of conventional agriculture have been
observed with regard to the accelerated loss of biodiversity that has resulted from
land-use practices linked to intensification. For instance, the removal of hedgerows
and drainage of species-rich wetlands have caused both the destruction and frag-
mentation of wildlife habitats across Europe.48 This has been particularly damaging
to species that depend on agricultural landscape features and the active manage-
ment of farmland for habitat and space. For instance, wild and farmland bird
populations continue to dwindle despite specific conservation legislation aimed at
addressing this decline and the introduction of specific agri-environmental mea-
sures.49 Likewise, a major concern in recent years has been the sharp declines in
pollinating bee populations, which 80% of European crops have been estimated to
rely on for pollination.50 Given the crucial role of biodiversity for maintaining the
resilience and stability of agricultural systems, these and other losses are expected
to pose particular threats to future productivity and food security.51
Notwithstanding the importance of halting biodiversity loss, the European
Environmental Agency’s (EEA’s) estimates that ‘only 17 percent of habitats and
11 percent of species of key ecosystems protected under EU legislation are in a
favourable state’.52 With regard to Natura 2000 sites (which covers over 10% of the
EU’s total agricultural area), in particular, the Commission has furthermore noted
that as much as 40–85% of habitats and 40–70% species of European interest have
an unfavourable conservation status.53 On the political level, this decline has been
the cause of widespread criticism as the EU had to concede that it failed to meet its
own biodiversity targets for 2010.54
In recent years, the impacts of climate change have also been subject to
increased attention given historic contributions that agriculture has made to the
emissions of greenhouse gases (GHG).55 Indeed, from the machinery to the devel-
opment and use of pesticide and fertilisers, fossil fuels play a central role in
maintaining the high levels of outputs that Europe and the world have come to
expect.56 However, some have argued that understanding of the link between how
food security has been pursued and its resulting effects upon climate change has
been unnecessarily delayed due to the imbalanced focus that the climate debate has
47
48
Jack (2009), pp. 23–26.
49
BirdLife International (2011), p. 2.
50
European Commission (2011d), p. 3.
51
Ibid., at 60.
52
Ibid., at 1.
53
European Commission (2011e), p. 4.
54
Birdlife (2011), p. 2; Bradley et al. (2012), p. 60.
55
See for instance Cardwell (2011).
56
Fowler and Mooney (1990), pp. 46–47.
tended to place on energy use and consumption.57 The latter has arguably been the
case with regard to the effects of livestock production, which has been the main
source of global nitrous oxide (N2O) and methane (CH4) emissions, carrying with
them warming potentials that far outweigh that of carbon dioxide (CO2).58 How-
ever, it should be noted that livestock production and changes in land use (often
linked to intensification) have also contributed to significant releases of CO2 by, for
instance, reducing the levels of carbon sequestrated in agricultural soils.59 As is
further explored below, the effects of climate change on agriculture are expected to
be pervasive and include projections of reduced yields and productivity in regions
subject to changes such as heat waves, flooding, and droughts. This is undoubtedly
expected to pose unprecedented challenges to food security as long-since acknowl-
edged by the EU.60
As the effects of intensive production have become increasingly recognised, so
too has the need to move towards more ecologically orientated forms of agriculture,
with the aim of securing long-term food security. In response, the sustainable
management of natural resources has been formulated as a central CAP objective
aimed at addressing the environmental externalities of land management practices
funded under the CAP.61 The following sections examine the main legal measures
that have been pursued to this end and critically assess the extent to which they have
been shaped and informed by the underlying principle of sustainable development.
3 Sustainable Agriculture: A Cornerstone of the CAP or

Just Another Brick in the Wall
3.1 The Influence of the Sustainable Development Paradigm
Over the course of several decades, sustainable development goals have permeated
most, if not all, fields of EU policymaking, and the CAP has been no exception.62
As already noted, the objective of sustainable agriculture is often traced back to the
fifth EAP, which attempted to lay down a road map towards more ‘sustainable’
development and singled out agriculture as a main source of environmental
57
Rodale (2010), p. 5.
58
The warming potential of N2O and CH4 being 310 and 21 times higher than CO2, respectively.
See European Commission (2010a).
59
Bailey et al. (2014), p. 14.
60
European Commission, Green Paper of 29 June 2007 on adapting to climate change in Europe—
options for EU action COM(2007) 354 final, p. 4.
61
European Commission (2010a, b).
62
For and overview of local and regional sustainable development plans, see Research Institute for
Managing Sustainability (2009).
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28 A. Epstein
degradation and one of the sectors most in need of reform.63 In practical terms,
these changes have largely taken place through EPI, which requires that environ-
mental protection be integrated ‘into the definition and implementation of the
Union policies and activities, in particular with a view to promoting sustainable
development’.64 Thus, the EU’s first major sustainable development strategy
stressed that the environmental integration plans of the various sectoral policies
(including the CAP) ‘should be consistent with the specific objectives of EU
sustainable development strategy’.65
It follows that the CAP, being one of the EU’s most important and long-standing
flagship policies, has slowly come under pressure to contribute towards the goal of
sustainable development by addressing the negative environmental costs of pro-
duction agriculture. A key policy response to this imperative has been through the
formulation of sustainable agriculture as the main CAP objective tasked with
creating ‘the desired relationship between agriculture and the environment’.66
Importantly, the Commission has clearly accentuated that the underlying notion
of ‘sustainability’ in this context is directly linked to that of sustainable develop-
ment.67 The objective of sustainable agriculture under the CAP framework has
consequently been described as preserving ‘the overall balance and value of the
natural capital stock and a redefinition of short, medium and long-term consider-
ations to reflect real socio-economic costs and benefits of consumption and
conservation’.68
The latter is reflective of the core dimensions of the principle of sustainable
development ‘based on balanced economic growth and price stability, a highly
competitive social market economy, aiming at full employment and social progress,
and a high level of protection and improvement of the quality of the environ-
ment’.69 Importantly, this restatement also points to one of the staple features of the
post-modern concept, namely the notion that the social, economic and environ-
mental challenges of contemporary society may be balanced to create ‘sustainable’
outcomes and continued growth-based development.70 Thus, one of the central
questions surrounding the three-part concept has been how to actually carry out this
balancing act in environmentally meaningful ways. In legal terms, such concerns
have partially been addressed at EU level by environmental legislation, recognition
63
64
Article 11 TFEU.
65
66
67
Ibid.
68
Ibid.
69
Article 3 TEU.
70
This was for instance evident in the G€
oteborg strategy for sustainable development and has more
recently been reiterated in the Council’s review of the 2006 sustainable development strategy,
which emphasised that ‘the role of economic development in facilitating the transition to a more
sustainable society’. See Council of the European Union (2006) at 6. See also Baker (2007), p. 299.
of the polluter pays principle, as well as the principles of prevention, precaution and
intergenerational equity. However, Avilés has pointed out that these principles have
been of limited use in striking such balances due, in part, to their inherent contra-
dictions and uncertainty as to which considerations that should bear the greatest
weight.71 Furthermore, important legal and conceptual questions remain as to what
constitutes a ‘high level’ of environmental protection, the circumstances under
which environmental concerns ought to outweigh economic and social ones and
how these should be measured and prioritised.
There are few EU policy areas in which these three elements of sustainable
development appear to be in such potential conflict as under the CAP. For instance,
as already seen, Article 39(1) TFEU tasks the EU institutions with realising the
socio-economic objectives of the CAP, including increasing agricultural produc-
tivity, stabilising markets and ensuring that products reach consumers at reasonable
prices while also providing a fair standard of living for the farming community.
However, the provision makes no mention of environmental aims or considerations,
with the effect that the fundamental treaty objectives of the CAP remain highly
committed to the economic and social aspects of EU agricultural policy.72 Against
this background, the following sections explore the extent to which the process of
greening has served to counterbalance this underlying bias and whether the influ-
ence of the sustainable development paradigm has brought the objective of sustain-
able agriculture closer within reach.
3.2 The Successive ‘Greening’ of the CAP
Although it is beyond the scope of the current discussion to provide a full account of
the many agri-environmental measures that have been introduced with an aim of
greening the CAP, a few landmark changes deserve brief attention. Indeed, since
the first major policy reform in 1992, the CAP has undergone a number of structural
changes that have impacted upon the land management and production practices of
European farmers.73 Two particularly important steps in this evolution has been the
gradual move from product support (mentioned above) to producer support, as well
as the creation of a two-pillar policy framework: with Pillar I being devoted to
direct payments and Pillar II to rural development.74 Together with a number of
other structural policy changes, these have provided the EU with novel opportuni-
ties to pursue the objective of sustainable agriculture by successively integrating
agri-environmental policy measures under the CAP.
71
Avilés (2012), p. 30. See also Gillroy (2006), p. 2.
72
See Article 39 TFEU.
73
For a detailed overview, see Jack (2009).
74
For an overview of these developments, see Matthews (2011).
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30 A. Epstein
With regard to Pillar II, this process began with the Agenda 2000 reforms and
Regulation 1257/99, which required all MSs to include agri-environmental schemes
in their rural development programs (RDP).75 The subsequent division of Pillar II
measures into four so-called axes, under the Mid-Term Review, also added further
weight to the environmental dimension of rural development policy by devoting the
second of these axes to ‘improving the environment and the countryside’.76 In
particular, Regulation 1698/2005 envisaged that ‘agri-environmental payments
should continue to play a prominent role in supporting the sustainable development
of rural areas and in responding to society’s increasing demand for environmental
services’.77 Moreover, Article 36 of the regulation specified that measures funded
under the environmental axis (Axis II) included those ‘targeting the sustainable use
of agricultural land’ by means of a number of listed payments.78
However, although the intention of these payments was essentially to induce
land management practices capable of providing tangible environmental goods and
benefits, it is important to note that Pillar II measures have always depended on the
voluntary uptake of farmers. In other words, even though MSs are obliged to devote
a certain level of resources towards formulating agri-environmental schemes and
objectives as part of their RDPs, the choice of enrolment and participation remains
firmly with the individual farmer. Furthermore, it might be added that the funding
arrangements for Pillar II measures only provide for partial funding from the EU
budget, with MSs having to draw the balance from their national funds.79 It follows
that the willingness of farmers to enrol as well as of MSs to commit to developing
meaningful and properly targeted agri-environmental measures has varied widely
across the EU.80
On the other hand, a different approach has been taken with regard to the
introduction of greening measures under Pillar I. In particular, the development
of the direct payments regime and the successive shift from price support to
producer support ‘provided an important opportunity to ensure that farmers fulfilled
75
Council Regulation (EC) 1257/1999 of 17 May 1999 on support for rural development from the
European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing
certain Regulations, OJ [1999] L160/80, Article 43(2).
76
Council Regulation (EC) 1698/2005 of 20 September 2005 on support for rural development by
the European Agricultural Fund for Rural Development (EAFRD) (the 2005 Rural Development
Regulation) OJ [2005] L277/1, (Axis II).
77
Ibid., Preamble at 35.
78
Ibid., Article 36.
79
Regulation (EU) 1305/2013 of the European Parliament and of the Council of 17 December
2013 on support for rural development by the European Agricultural Fund for Rural Development
(EAFRD) and repealing Council Regulation (EC) No 1698/2005, OJ [2013] L347/487, Articles
58–63.
80
Matthews (2013), pp. 13–14.
more specific environmental obligations’.81 The most decisive move in this direc-
tion has, arguably, been through the introduction of cross-compliance in 2005,
which was intended to ‘contribute to environmental improvement and sustainable
development in agriculture’.82 Regulation 1782/2003 was, thus, the first to impose
baseline environmental conditions that farmers were required to observe in order to
receive direct payments.83
The regulation divided these obligations into two distinct groups: statutory
management requirements (SMR)84 and requirements to keep land in good agri-
cultural and environmental condition (GEAC).85 With regard to SMRs, these
covered management requirements concerning the environment; public, animal
and plant health; and animal welfare.86 In particular, Annex III of the regulation
listed a number of EU directives under each of these headings, which required
specific (i.e., cross-)compliance in exchange for direct payments. The environmen-
tal SMRs related to long-standing corner pieces of EU environmental legislation,
such as the Wild Birds Directive,87 the Groundwater Directive,88 the Sewage
Sludge Directive,89 the Nitrates Directive90 and the Habitats Directive.91 As is
always the case with EU directives, however, horizontal enforceability of these acts
depended on MSs to translate their objectives into concrete national rules.92
Likewise, MSs were responsible for operationalising the requirements and
standards for GEACs, set out in Annex IV of Regulation 1782/2003.93 The annex
listed four thematic issues for which specific minimum standards had to be set by
MSs (either on a national or regional basis), taking ‘into account the specific
81
Jack (2009), p. 66. See also Regulation 1782/2003 of 29 September 2003 Establishing Common
Rules for Direct Payment Schemes under the Common Agricultural Policy OJ [2003] L270/1,
Preamble at 24.
82
European Commission (1999) at 21. Likewise the ECA had previously encouraged attaching
conditions to the receipt of direct payments. See European Court of Auditors (2000).
83
Regulation 1782/2003 of 29 September 2003 Establishing Common Rules for Direct Payment
Schemes under the Common Agricultural Policy, OJ [2003] L270/1.
84
Article 4.
85
Article 5.
86
Article 4.
87
Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, OJ [1979]
L103/1.
88
Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against
pollution caused by certain dangerous substances, OJ [1980] L20/43.
89
Council Directive 86/278/EEC of 12 June 1986 on the protection of the environment, and in
particular of the soil, when sewage sludge is used in agriculture, OJ [1986] L181/6.
90
Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against
pollution caused by nitrates from agricultural sources, OJ [1991] L375/1.
91
Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild
flora and fauna, OJ [1992] L206/7.
92
Article 4(2) Regulation 1782/2003.
93
Regulation 1782/2003 of 29 September 2003 Establishing Common Rules for Direct Payment
Schemes under the Common Agricultural Policy, OJ [2003] L270/1.
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32 A. Epstein
characteristics of the areas concerned, including soil and climatic condition,

existing farming systems, land use, crop rotation, farming practices, and farm
structures’.94 Specifically, these included setting minimum standards aimed at
addressing the issues of soil erosion, soil organic matter, soil structure and a
minimum level of maintenance.95
Certainly, the introduction of cross-compliance constituted the principal instru-
ment for integrating environmental protection considerations within Pillar I prior to
the 2013 reforms.96 Moreover, the framework for both SMRs and GEACs was
further streamlined and revised following the CAP ‘Health Check’ in 2009.97 And
additional changes, such as an increased focus on climate change measures, were
also adopted in the context of the 2013 reforms. Thus, it appears that cross-
compliance will continue to be an important aspect of the direct payments regime
and the CAP’s overall contribution towards attaining improved levels of environ-
mental protection and sustainable agriculture.
However, neither the introduction nor the fortification of the cross-compliance
regime has come without considerable criticism pertaining to its perceived lack of
ambition and limited environmental outcomes. With regard to the former, for
instance, it has already been seen that the SMRs were based on pre-existing
legislation, which essentially meant that a sizable part of the Commission’s effort
to ‘green’ the CAP rested on compensating farmers to follow the law. This not only
appeared illogical from an economic perspective,98 but there were also concerns
that it could conflict with the polluter pays principle, which clearly requires the
producer to bear the costs of operating in compliance with basic legal obligations.99
Moreover, some of the directives had, technically, required implementation to be
completed – and the relevant obligations imposed upon farmers—years before the
introduction of cross-compliance.100
A particularly challenging aspect of cross-compliance has been how to empir-
ically evaluate the outcomes of these policy measures. For instance, scathing
criticism came from the European Court of Auditors (ECA) in 2008, which stressed
that the achievements of cross-compliance were incapable of being precisely
monitored due to the absence of reliable and comprehensive ‘objectives,
94
Article 5(1).
95
Annex IV.
96
See for instance Institute for European Environmental Policy (2006).
97
Council Regulation (EC) 73/2009 of 19 January 2009 establishing common rules for direct
support schemes for farmers under the common agricultural policy and establishing certain
support schemes for farmers, OJ [2009] L30/16, Annex III.
98
European Court of Auditors (2008), para 13. Importantly, however, the GEAC standards
imposed obligations beyond the legal baseline to some extent.
99
For a comprehensive discussion of the matters involved, see Cardwell (2006).
100
Thus, S€oderberg has described the SMRs as a tool for speeding up compliance by MSs with
transposition of the various environmental directives. See S€
oderberg (2011).
performance, indicators and baseline levels’.101 Likewise, BirdLife International

and other environmental organisations have noted the difficulties in evaluating
policy instruments that they consider to be poorly designed and implemented.102
Needless to say, this complicates efforts to measure the practical outcomes of cross-
compliance against the Commission’s initial claims that it was expected ‘to con-
tribute towards the development of sustainable agriculture’.103
3.3 The 2013 Reforms: Framing the Objective of Sustainable

Agriculture Towards 2020 and Beyond
The objective of ‘sustainable agriculture’ gained further standing following the

Commission’s 2010 white paper, The CAP Towards 2020, which clearly outlined
the three principal goals of (1) the sustainable management of natural resources and
climate action, (2) viable food production and (3) balanced territorial development
as the focus of the post-2013 framework.104 This approach was largely maintained
and reiterated throughout the legislative process that followed, with the result that
the first-mentioned objective (1) currently provides the basis for formulating and
pursuing the CAP’s environmental objectives, while the other two largely focus on
the socio-economic aspects of maintaining viable levels of farm income, as well as
improving the competition and dynamism of the farming sector.
The main novelty of the 2013 reforms was, undoubtedly, the introduction of the
so-called greening component by Regulation 1307/2013 (the direct payments
regulation).105 Specifically, the greening component ties 30% of direct payments
to the observance of three agricultural practices ‘beneficial for the climate and the
environment’.106 These include the observance of crop diversification require-
ments, the requirement to maintain permanent grasslands and the designation of
ecological focus areas (EFA).107
From the outset, the Commission expressed its expectation that these measures
would ‘accelerate the process of integration of environmental requirements . . . and
reinforce the ability of land and natural ecosystems to . . . address major EU
101
European Court of Auditors (2008), para 13.
102
Birdlife International (2010), p. 36.
103
European Commission (2007c), p. 2.
104
European Commission (2010b).
105
Regulation (EU) 1307/2013 of the European Parliament and of the Council of 17 December
2013 establishing rules for direct payments to farmers under support schemes within the frame-
work of the common agricultural policy and repealing Council Regulation (EC) No 637/2008 and
Council Regulation (EC) No 73/2009, OJ [2013] L347/608, Articles 43-47. See also Tangermann
(2011), p. 23.
106
See Articles 42 and 43(2).
107
Ibid.
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34 A. Epstein
biodiversity and climate change adaptation objectives’.108 Likewise, a commentary

from the General Secretariat of the Council underscored that the ‘coherence and
consistency of the greening model is essential in order to ensure . . . more sustain-
able agriculture’.109 However, despite these positive expectations, the final mea-
sures left much to be desired in the opinion of numerous commentators.
In particular, the negotiation process leading up to the legal reforms in
December 2013 dramatically served to dilute the standards for compliance with
the greening component as it was initially envisioned by the Commission. For
instance, with regard to crop diversification, the proposals for a direct payment
regulation specified that holdings with more than 3 ha of land should be subject to
growing three crops, with no single crop covering less than 5%, or more than 70%
of the arable land.110 This can be contrasted with the final measures, currently in
place, which require holdings with 10–20 ha to grow a minimum of two crops, with
the main crop not covering more than 75% of the arable land.111 Holdings
consisting of more than 30 ha must, as a general rule, comply with the requirement
to grow a minimum of three crops, again, with the main crop not exceeding 75%
and the two main crops not covering more than 95% of the arable land. Considering
that a number of MSs have an average farm size of less than 10 ha, there will be
obvious exemptions to this requirement.112
Likewise, the outcome of the political negotiation process served to diminish the
Commission’s original framework for the establishment of EFAs. According to the
latter, all farmers in receipt of direct payments would have been required to ensure
that at least 7% of their eligible hectares were devoted to EFAs (excluding areas
under permanent grassland) with the specific aim of supporting farmland biodiver-
sity.113 Crucially, the proposal included a number of landscape features that could
be counted as part of individual EFAs, as well as allowing for certain types of
production to be carried out.114 The latter served to distinguish the EFA measure
from earlier set-aside regimes that had been introduced as a means of curbing
overproduction rather than for their environmental benefits.115 However, under the
final regulation, EFAs need only cover 5% of the eligible area and are not applica-
ble to holdings with less than 15 ha. Thus, as seen in the case of the crop
diversification, a considerable proportion of EU holdings are not expected to be
affected by this measure in any noteworthy way.
108
European Commission (2011c), p. 3.
109
General Secretariat of the Council of the European Union (2012), p. 3.
110
Article 30 of the Proposed direct payments regulation.
111
Article 44.
112
Eurostat (2013).
113
Article 32(1) of the proposed direct payment regulation.
114
See Annex IV of Regulation 1307/2013.
115
Production was generally not permitted in the case of set-aside. See Council Regulation (EEC)
2078/92 of 30 June 1992 on agricultural production methods compatible with the requirements of
the protection of the environment and the maintenance of the countryside, OJ [1992] L215/85.
The maintenance of permanent grassland was, clearly, the main measure aimed at
addressing climate change. However, considering the ensuing and pervasive effects
that this phenomena is expected to have in the coming years, it appears doubtful
whether this measure provides a meaningful contribution towards mitigating its
projected effect. For instance, Mahé has argued that the formulation of the permanent
grassland measure in its present form is ‘regrettable’, considering that the obligation to
maintain permanent grassland will only require direct action by farmers in the event
that the ratio of these grasslands would fall by more than 5% compared to the 2015
reference level.116 In other words, this measure does not actually require any positive
action on the part of farmers but rather institutes an indirect imperative to refrain from
converting permanent grassland to other uses. Responsibility is instead placed on the
MS to take action if and when the 2015 reference level falls by more than 5%. Under
the current framework, it is therefore only once these grasslands have already been
converted that MSs will be under an obligation to put in place measures to protect them.
Accordingly, Mahé suggests that the measures would significantly have benefited from
including an ‘incentive scheme to restore former grasslands that were converted to
cultivation in order to access payment entitlements’.117
The outcomes of the 2013 CAP reforms must also be placed within the wider
context of some of the global developments that served to impact upon the
negotiation process and the resulting political and legislative outcomes. In partic-
ular, the round was initiated in the direct aftermath of the 2007–2008 food crises
and the ensuing market instability that followed. These experiences undoubtedly
influenced the EU’s direction of travel and served to place the issue of food security
firmly on the top of the reform agenda.118 This was, for instance, evident from
institutional communications such as the European Parliament Resolution of
13 January 2009, which stressed that the issue of ‘global food security is a matter
of utmost urgency’.119 Furthermore, in 2011, it added that ‘food security remains
the central challenge for agriculture not only in the EU but globally’.120
However, rather than prompting the EU to commit to stronger environmental
protection measures, Matthews and others have argued that the 2007–2008 food
crises served to fuel a productionist agenda with little interest in reducing agricul-
tural output for the sake of environmental priorities.121 This agenda has arguably
been further entrenched given the increased profitability that has been observed in,
e.g., the cereal sector (with cereal being produced on almost half of EU farms) in
recent years as this would presumably provide a financial incentive to resist
incursions on production through the introduction of land-use measures.122
116
Article 45.
117
Mahé (2012), p. 18.
118
Matthews (2013), p. 22.
119
European Parliament (2009), para S (1).
120
European Parliament (2011), para B.
121
Matthews (2013), p. 22.
122
For statistics on profit margins in the cereal sector, see European Commission (2014), p. 4.
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36 A. Epstein
Moreover, Matthews points out that such sentiment was particularly critical of the
EFA element of the greening component since it was viewed in terms of its
potential to threaten production.123 As already seen, however, this concern was
addressed by the direct payment regulation by allowing considerable possibilities
for cultivation on EFAs.124
Given the weakened scope of the final instruments, important questions remain
as to whether they will actually be capable of providing significant benefits for
biodiversity or contribute towards meaningful climate change mitigation.125 For
instance, Pe’er et al. have argued that despite EU politicians ‘announcing the new
CAP as greener . . . the new environmental prescriptions are so diluted that they are
unlikely to benefit biodiversity’.126 They also observed that the greening measures
have not fulfilled the EU’s own target to ‘maximise areas . . . covered by
biodiversity-related measures under the CAP’.127 Consequently, they conclude
that the 2013 reforms denoted a lost ‘opportunity to design better guidelines to
improve agricultural sustainability’.128
It is, of course, too early to empirically evaluate the outcomes of the new
greening measures. But if the conclusions drawn by Pe’er and others should stand
the test of time, it would imply that the new greening measures represent a severe
mismatch between the stated objective of ‘enhancing the environmental perfor-
mance’129 of the CAP and the actual outcomes that are expected to result from the
implementation of these specific instruments. Either way, the final measures may be
seen to reflect the institutionally negotiated balance that has been struck between
the environmental, social and economic priorities of the CAP, with a view to
contributing towards sustainable development.130 But does such a negotiated
balance reflect environmental realities, and can it produce truly sustainable
outcomes?
123
Matthews (2013), at 22.
124
See Article 46.
125
For instance, a number of leading environmental NGOs collectively criticised the original
proposals on a number of grounds. But this was, of course, even before they were further diluted:
Birdlife Europe et al. (2012).
126
Pe’er et al. (2014a, b), p. 1090.
127
Ibid.
128
Ibid., at 1091.
129
Regulation (EU) 1307/2013, Preamble at 37.
130
For instance, the Commission’s impact assessment of the CAP 2020 reform proposals assesses
the various points according to this tri-part framework. Pe’er et al. (2014a, b).
4 Recognising the Ecological and Perpetual Dimensions

of Food Security: The Urgent Need to Reconsider
Current Approaches to Food Security
Notwithstanding the increased political commitment to environmentally sustain-

able agriculture, as well as the successive introduction of agri-environmental
measures that has taken place in recent years, it is clear that even the current
model of EU agriculture persistently places an overwhelming attention on the
socio-economic aspects of food production and security.131 In the process, agricul-
ture has continued to play a ‘major part of many of the gravest environmental
threats facing the earth’.132 For instance, with regard to biodiversity loss, it has
already been seen that agriculture and land management practices have constituted
significant drivers of this decline, despite the CAP being long upheld as a flagship
policy for meeting the EU’s biodiversity targets.133 Unsurprisingly, then, the
Commission has acknowledged that the alarming rate at which biodiversity loss
has occurred in recent decades makes it ‘the most critical global environmental
threat alongside climate change’.134
Not least, both biodiversity loss and climate change have the potential to pose
serious challenges for the ability of future generations to feed themselves—by
endangering the stability and resilience of the processes that enable food produc-
tion. For instance, the former is expected to have significant implications for
productivity, considering that important functions such as ‘carbon sequestration,
nutrient cycling, soil structure and functioning, water purification and pollination
. . . rely on biological diversity within agricultural ecosystems and beyond’.135
Likewise, with regard to climate change, the United Nation Intergovernmental
Panel on Climate Change (IPCC) has recently indicated that crop yields for staple
crops such as wheat are expected to continue to decrease in Southern Europe ‘under
future climate scenarios’.136
The great paradox is, then, that in pursuit of food security for the current global
population, many conventional agricultural practices are simultaneously direct
drivers of the very ecological decline that could threaten the ability of future
beneficiaries to ensure food security for themselves. Similar observations have
repeatedly prompted calls for the need to formulate a novel approach to agriculture
‘that is capable of feeding humans but which does not damage biodiversity and
ecosystem services upon which it ultimately depends’.137 Likewise, Foley has
131
See for instance European Commission (2012).
132
Charles and Godfray (2011), p. 19846.
133
Birdlife (2011), p. 2.
134
European Commission (2011d), p. 1.
135
Stoate et al. (2009), p. 22.
136
IPCC AR5.
137
Garnett and Godfray (2012), p. 18.
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38 A. Epstein
stressed that in order to ‘guarantee the globe’s long-term health, we must dramat-
ically reduce agriculture’s adverse impacts’.138
Simply put, agriculture must become ecologically sustainable in order to ensure
long-term food security.139 But in order to do so, fundamental reappraisal of the
concept of sustainable agriculture and its inherent link to the ‘weak’ notion of
sustainability, as pursued under the current development paradigm, is urgently
required. In particular, there is a need to afford significantly greater attention to
the ecological dimensions of food security and for this move to be reflected under
the CAP framework and pursued by purposive agri-environmental instruments to
this end. Against this backdrop, the final section will explore how a revised
approach to the objective of sustainable agriculture may serve to inform the trans-
formations that are needed for attaining long-term food security. It commences by
considering some of the main challenges that are predicted to impact upon agricul-
tural production in the near future.
4.1 The Looming Challenges to Food Security and the (in)

Adequacies of Anthropocentric Models of Environmental
Protection
It has become increasingly clear that food security will need to be provided, amidst
a number of complex and converging challenges. For instance, the UN has recently
revised its population data, which suggest that the global population is destined to
reach almost 10 billion rather than 9 billion, as previously indicated, by the year
2050 and 11.2 billion by 2100.140 With regard to resource use, these demographic
changes are widely expected to be amplified by parallel increases in wealth, with
the effect that the global food demand could rise by up to 100% by the end of the
century based on current trends and consumption patterns.141 In response, the
Commission has stressed the crucial role of the CAP in meeting world food
demand.142 And, likewise, the European Economic and Social Committee has
recently recognised that the ‘issue of food security should be placed at the heart
of the EU’s policies as a prerequisite for a strategy for global stability’.143 However,
very serious challenges exist, not only in meeting this demand but, in doing so, in
ecologically sustainable ways.
One of the most formidable of these is the obvious lack of land on which to
increase agricultural output. Indeed, much of the land suitable for production has
138
Foley (2011), p. 62.
139
Foresight (2011), p. 12.
140
United Nations (2015), p. 2.
141
Tilman et al. (2011), p. 20261.
142
European Commission (2010b), p. 5.
143
European Economic and Social Committee (2013), at 16 (para 1.1).
already been diverted to this end, and what is left is often too stony, saline, wet, dry
or afforested to be of significant agricultural use.144 Moreover, land conversion in
other areas remains inherently prohibitive, considering that it invariably implies the
release of carbon dioxide (CO2), which can only add to the concentration of GHGs
in the atmosphere.145
In the European context, this has increasingly led to the consideration of
so-called sustainable intensification as a possible means of meeting the limits to
land conversion and extensification in the future. However, it must also be noted
that—although a certain level of intensification may be viable in some regions
(such as in the case of sub-Saharan Africa, where agriculture is often characterised
by low-intensive production)—European agriculture is already among the most
intensive in the world. Thus, there remains significant uncertainty as to the extent to
which the ‘intensification of crop production on the land already under agriculture
will be enough to produce the amount of food required and what that will imply in
terms of soil, crop and water management’.146
In addition to the demographic and socio-economic changes mentioned above,
agriculture is also predicted to be affected by a number of fundamental changes to
the processes and systems that enable food production and cultivation.147 Key to
grasping the extent of these impacts has been the evolving Earth sciences and the
increased understanding of the biophysical and biochemical systems that have
taken place within these disciplines in recent years. Rockstr€om et al., for instance,
identify nine planetary systems that, together, affect the entire function of the Earth
system and thereby the conditions for life itself, as they have hitherto been
known.148 Within each of these nine systems, they point to the existence of critical
thresholds, beyond which planetary processes risk becoming both unstable and
unpredictable. For instance, once planetary boundaries have been transgressed,
which Rockstr€ om et al. have suggested is the case for both biodiversity and climate
change,149 then merely optimising resource use or minimising the damaging effects
of, e.g., agriculture may well be insufficient for attaining sustainable outcomes. It is
therefore impossible to overemphasise the need for humanity to exercise develop-
mental restraint in order continue to operate within these boundaries because there
144
For instance, Foley et al. suggested that agriculture occupied more than 38% of the Earth’s
terrestrial surface in 2011. See Foley (2011), p. 337.
145
Charles et al. (2014), p. 5.
146
Rockstr€om et al. (2009), p. 1.
147
Nilsson and Persson (2012), p. 14.
148
Rockstr€om et al. (2009), p. 8. The planetary systems ‘cover the global biogeochemical cycles of
nitrogen, phosphorus, carbon, and water; the major physical circulation systems of the planet (the
climate, stratosphere, ocean systems); biophysical features of Earth that contribute to the under-
lying resilience of its self-regulatory capacity (marine and terrestrial biodiversity, land systems);
and two critical features associated with anthropogenic global change (aerosol loading and
chemical pollution)’ (at 8).
149
Rockstr€om et al. (2009).
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40 A. Epstein
is fundamental uncertainty as to what extent changes to the Earth system will

continue to support life, as it has hitherto been known.150
However, despite these highly informed warnings, the aggregate anthropogenic
impacts of past and current generations are such as that they threaten to move
beyond what has, hitherto, been a ‘safe operating space’ for humanity.151 This has
prompted considerable debate over the failures and inefficiencies not only of the
current environmental protection paradigm but also of international environmental
law itself.152 For instance, Kim and Bosselmann have stressed that although the
Millennium Development Goals include the objective of ensuring environmental
sustainability, they do ‘not set absolute limits on the amount of environmental
impact that human society may exert’.153 Furthermore, Kosoy et al. argue that the
global failure to deal with biodiversity and ecosystem function loss has, likewise,
been due to the ‘lack of adequate responses by our societies and their reigning
international institutions’.154 Consequently, it goes without saying that although the
need to halt further transgression of planetary thresholds is unmeasurable, ‘respect-
ing such boundaries presents a formidable governance challenge’.155
A major hurdle to accomplishing the necessary changes under the current
development paradigm is that ‘sustainability’ continues to be approached as a
relative concept, which is largely identified through the political process. Although
this process is, to some extent, informed by scientific knowledge, the ultimate
determinations are often made on the political level and based on political consid-
erations. In particular, it is the political process that continues to determine the
baseline against which to measure sustainability. For instance, Garnett and Godfray
have pointed out that, with regard to biodiversity loss, ‘a concern of many conser-
vationists is that . . . the baseline keeps shifting downwards, since society is
unaware of or simply accepts what is has lost’.156 A core anxiety is, then, that the
political process may simply choose to overlook certain aspects of such decline if
their functions are not sufficiency appreciated, valued or understood. Likewise,
Rockstr€ om et al. have underscored that ‘the thresholds in key Earth System
processes exist irrespective of peoples’ preferences, values, or compromises
based on political and socioeconomic feasibility’.157
However, the task of identifying accurate and reliable indicators to determine the
latter remains both an academic and political challenge. For instance, Tilman et al.
150
Steffen et al. (2011), p. 739.
151
This operating space has been enabled under the conditions of the Holocene period, which
denotes the current interglacial period that started approximately 10,000 years ago. See Rockstr€
om
et al. (2009).
152
Kim and Bosselmann (2013), p. 302.
153
Kim and Bosselmann (2015), p. 1.
154
Kosoy et al. (2012).
155
Nilsson and Persson (2012).
156
Garnett and Godfray (2012), p. 27.
157
Rockstr€om et al. (2009), p. 7.
have pointed out that although there exists some agreement regarding the possibil-
ity of producing food to meet the needs of up to 10 billion people, ‘there is little
consensus on how this can be achieved by sustainable means’.158 Importantly, they
have concluded that meeting these challenges ‘represents one of the greatest
scientific challenges facing humankind because of the trade-offs among competing
economic environmental goals, and inadequate knowledge of the key biological
and ecological processes’.159
4.2 Sustainable Agriculture: (re)Discovering the Link

Between Food Security and the Ecological
Resource Base
In light of the discussion so far, there would appear to be little doubt that sustainable
agriculture remains a distant aspiration. For instance, Charles and Godfray have
stressed that ‘a rapid transition to sustainable agriculture is essential’,160 suggesting
that current approaches may be largely unsustainable. Indeed, even the Commission
has conceded that meeting world food demand based on present approaches is
likely to undermine the positive results achieved with regard to the sustainable
management of natural resources and environmental preservation in recent
years.161 Such observations have, undoubtedly, highlighted the need to significantly
transform the ecological impacts of agriculture, and Benton has warned that the
challenges in doing so cannot easily be underestimated ‘because in the long run,
sustainable production requires it’.162
In practice, however, responding to these challenges may require a multitude of
strategies, and although there is general agreement with the proposition that
approaches to sustainable agriculture should be ‘flexible and not prescribe a con-
cretely defined set of technologies, practices or policies’,163 it is necessary to stress
that these technologies, practices and policies must nonetheless operate within the
bounds of what is ecologically viable if they are to be deemed sustainable.164 In
contrast with policy formulations and approaches of the recent past, the suggestion
here is therefore that the future challenges to food security require a more principled
and ecologically grounded approach to sustainability than has hitherto been the
158
Tilman et al. (2002), p. 672.
159
Ibid.
160
161
European Commission (2012), p. 3. See also European Commission (2007a, b, c), p. 2.
162
Benton (2012), p. 8.
163
Pretty et al. (1996), p. 6.
164
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42 A. Epstein
case. In particular, there is an urgent need to reconsider the conceptual link between
food security and the ecological dimensions of production agriculture.165 Indeed, if
the primary purpose of agriculture is to provide food, and thereby food security,166
then it goes without saying that the latter is fundamentally dependent on the
environmental and ecological resources that make agriculture and food production
possible in the first place.167
Seen in this light, it becomes impossible to separate long-term food security
from the long-term well-being and resilience of the ecological resource base.168
Thus, even though there exist several diverse and complex socio-economic dimen-
sions to food security, one commonality is that they all depend on the biophysical
conditions that enable food to be produced in the first place.169 In other words, the
fact that human societies have developed metaphysical (socio-economic) structures
that are unable to equitably distribute food, or ensure access to it, does not diminish
the premise that food security depends first and foremost on the health and
resilience of the natural processes that enable food production. This is undoubtedly
reflective of Bosselmann’s argument that ecological considerations deserve pri-
macy over socio-economic ones, not least because all social and economic devel-
opment depends on ecological sustainability.170 Maintaining and preserving the
integrity of the ecological systems and processes that enable food production is,
therefore, seen as the core objective of sustainable agriculture, for the purpose of
ensuring food security.
The need to prioritise the ecological dimensions of sustainable agriculture is also
intimately linked to another central tenet of food security highlighted herein,
namely that it must be guaranteed and secured for an indefinite future. The latter
reflects the intergenerational component of food security and is based on the
understanding that genuine attempts to attain equitable food security must include
the protection of agricultural resources for the benefit of food production for future
life and generations.171 Thus, as already suggested, ensuring that food is steadily
produced and supplied for current generations cannot amount to food security if, in
the process, the prospects of production are reduced for future ones. The latter
would simply reflect a conscious choice to secure access to food in the short run—at
the potential risk of food (in)security in the long term. Moreover, such an approach
would be both unsustainable and incompatible with the principle of
intergenerational equity and the perpetual dimension of food security, proposed
herein.
165
Foresight (2011), p. 12; Pretty et al. (1996), p. 6.
166
167
Pretty et al. (1996), p. 6.
168
169
Buckwell et al. (2014), p. 32.
170
Bosselmann (2013), p. 104.
171
Foley et al. (2011), p. 341. This is also reflective of the principle of intergenerational equity.
Take, once again, the situation in post-World War II Europe, where food was in
short supply, and the only thing that arguably mattered was to produce it by
whatever means possible. This may have been a necessary position considering
the dire needs at the time. It was, by all accounts, also successful at supplying
Europeans with a constant flow of agricultural commodities, but in hindsight, it has
done so at immeasurable cost to the environment.172 The consequences of intensi-
fication have already been discussed, but the main point here is that conventional
approaches to agriculture have often marginalised the importance of ecological
systems and services within the food security matrix. And, in the process, agricul-
ture has contributed to extensive environmental damage of the very foundation of
food production, which can hardly be seen as ensuring food security on a long-term
basis.173
Technological advancements during the past century have also resulted in
agriculture becoming increasingly intrusive vis-a-vis nature while simultaneously
detaching itself more and more from its underpinning ecological processes. For
instance, mechanisation and drainage technology have allowed large-scale conver-
sions of wetlands and moorland into arable land.174 At the same time, the increased
use of synthetic fertilisers and chemical pesticides has enabled cultivation on
otherwise poor and unstable soils in many parts of Europe.175 In essence, such
practices have continuously served to multiply yields but have also changed the
way in which food cultivation is negotiated with nature.176 In many ways, negoti-
ation can be seen to have eroded as the objective of these technological advance-
ments has often been to cater to human needs with little consideration as to whether
they are environmentally viable or not.177 However, even though it has long since
been recognised that food and agricultural systems must become sustainable if the
productive capacity is to be maintained in the future, translating this into coherent
policy objectives with corresponding instruments—capable of ensuring that such
capacity is not diminished—has proven to be an especially challenging task.
4.3 Looking Ahead: Ecological Integrity a Fundamental

Dimension of Sustainable Agriculture
Given the considerable environmental scope of the CAP, food security depends
increasingly on the ability of present and future policy instruments to maintain the
172
Tilman (1998).
173
A similar example can be made with regard to the ecological consequences of the so-called
Green revolution that took place across large parts of Asia several decades ago.
174
UK National Ecosystem Assessment (2011).
175
van Zanten et al. (2014), p. 310.
176
With regard to livestock, see European Commission (2013), p. 3.
177
Miller and Rees (2000), p. 4.
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44 A. Epstein
integrity and capacities of the ecological systems that enable food production.
Undoubtedly, then, environmental law (on the EU, transnational and local levels)
and legal principles could play a particularly prominent role in informing the
fundamental changes that are necessary for achieving the latter, for instance by
imposing that instruments are devised and implemented in ways that do not only
refrain from undermining the ecological preconditions of food security but also
actively seek to uphold and restore them for the benefit of future generations.
A promising step in this direction has been the emerging recognition of the need
to protect the ‘Earth’s ecological integrity . . . as a common denominator among
international environmental law instruments’.178 Indeed, the role of integrity for the
proper functioning of the planet’s ecological systems and processes has been the
feature of international law and environmental treaties since it was first introduced
in the 1970s.179 Thus, important conventions such as the Convention on the
Conservation of Antarctic Marine Living Resources,180 the Rio Declaration181
and the Earth Charter have all stressed the need to protect the integrity of the
Earth system in one way or another. For instance, according to principle five of the
latter, one of the primary functions of global governance is to ‘protect and restore
the integrity of the Earth’s ecological systems, with special concern for biological
diversity and the natural processes that sustain life’.182
As already highlighted, an important distinction must be made in this context
between the normative and conceptual underpinnings of the principle of sustain-
ability—implicit in the term sustainable agriculture—and those underlying the
rationale for the concept of sustainable development. In its simplest form, the
principle of sustainability requires that ‘the use of resources do not exceed the
capacity of Earth to replace them’.183 However, some have stressed that the long-
term viability of these resources can only be guaranteed if law, policy and gover-
nance are firmly committed to ecological sustainability by recognising the intrinsic
value and integrity of the various processes and interactions that underpin natural
ecosystems.184 Such an approach is arguably more inclusive and far-reaching than
the concept of sustainable development and does not depend on a balancing act
being carried out between the social, economic and environmental aspects of
development. Rather, the concept of ecological integrity has the potential to
move beyond the artificial three-part divide that has informed environmental
protection over the past decades, by affirming the ecological centrality of all
178
Kim and Bosselmann (2013), at 288.
179
For a historic account of the development of ecological integrity as a principle and objective of
environmental law, see Westra et al. (2012).
180
The Convention for the Conservation of Antarctic Marine Living Resources. https://www.
ccamlr.org/en/organisation/camlr-convention-text.
181
Principle 7, United Nations Rio Declaration 1992.
182
Principle 5, The Earth Charter 2000.
183
184
Bosselmann (2008), p. 11.
human activity and development. In doing so, the aspiration would be to strengthen
obligations towards future generations and to exceed the aim of merely minimising
the collective impacts of contemporary agriculture and society at large.
5 Concluding Remarks
Throughout much of the twentieth century, food security has been defined and
pursued with an overwhelming focus on ensuring the supply and accessible pricing
of agricultural commodities. In the European context, this especially resulted in
production policies firmly aimed at raising productivity through structural reform
and agricultural intensification under the CAP. Although these policies were suc-
cessful in significantly increasing agricultural output, they took minimal consider-
ation of the ecological implication stemming from the prevailing model of food
security. Thus, as detailed above, in addition to maintaining constantly high levels
of food supplies, this focus also induced land management and production practices
that have greatly contributed to the ecological decline that has been recorded in
recent decades. In other words, while supplies have successfully been increased to
meet the demands of the European and global population, these gains have been
made at the expense of the stability and viability of the very resources that underpin
agricultural productivity and, thereby, long-term food security.
As the extent of this damage has gradually become impossible to overlook, the
need to seriously reduce the ecological impacts of production agriculture has
likewise become a focal point of European agricultural policy. In the process, the
objective of sustainable agriculture has been formulated to inform and underpin the
framing of agri-environmental measures aimed at addressing externalities linked to
production, land use and management practices. The above discussion has consid-
ered the extent to which this objective has been shaped by the underlying sustain-
able development paradigm, as well as a number of specific legal instruments that
have been pursued to this end. In particular, it has been argued that the limited
success and impact of these measures can be partly linked to inherent shortcomings
of the process of EPI, which has not necessarily prioritised the environmental
dimensions of agriculture and food security. Instead, it has been suggested that
while agri-environmental measures have successively been introduced as means of
greening the CAP, their scope and aim have been considerably shaped by socio-
economic considerations and outlooks.
This has been the case with measures introduced under both pillars of the CAP.
For instance, even though the rural development measures under Pillar II have been
programmed and refined for almost two decades, their uptake and funding vary
considerably across the EU. Likewise, with regard to Pillar I measures, serious
criticism continues to be levelled at the EU for the limited reach of its cross-
compliance regime, which is partly based on the enforcement of baseline legal
measures. The relevance of this discussion has recently been carried forward in the
context of the 2013 CAP reforms, which delivered a number of measures intended
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46 A. Epstein
to benefit the environment and the climate. In particular, these gave explicit
expression to the underlying principle of sustainable development. But, as has
been discussed, serious questions remain as to whether these and previously
existing measures will be capable of providing meaningful solutions to meeting
the stated objective of sustainable agriculture.
In particular, agricultural productivity and food security are set to face a number
of unprecedented environmental and demographic challenges over the years to
come. Thus, the discussion has suggested that these challenges are likely to lead
to significant additional pressures being placed on the ecological resource base if
the current model of EPI continues to provide the main solutions for addressing
these and other projections. Moreover, it has been suggested that the framework of
sustainable development and the accompanying process of EPI are incapable of
providing the necessary solutions as they overwhelmingly focus on the metaphys-
ical balancing of societal concerns, with little assurance of prioritising the ecolog-
ical realities and resources that underpin all human development. However, as these
resources erode, so too do the chances of leaving behind the best possible condi-
tions for ensuring that future generations will be able to attain the level of food
security needed to continue to support a growing population.
It has therefore been suggested that the objective of sustainable agriculture needs
to be dramatically reconceptualised in order to meet the mounting challenges. In
particular, it needs to be detached from the contemporary notion of sustainable
development in order to strive towards genuine sustainability. In doing so, it has
been argued that the ecological and perpetual dimensions of food security need to
be prioritised in order to inform the formulation of future policy and agri-
environmental measures. For the CAP to maintain a meaningful role in the
twenty-first century, it is therefore imperative that it should revise its approach to
sustainable agriculture in ways that prioritise the long-term ‘common good’ over
short-term socio-economic gains that stand to be made from appeasing a limited set
of interests and considerations. This undoubtedly entails pursuing an agricultural
policy that not only refrains from further damaging the ecological resources base
but also does its utmost to ensure that it is handed down to coming generations in
the best possible condition. In short, agricultural policy needs to take on a more
proactive, rather than reactive, role in addressing the unprecedented challenges
facing future agriculture and food security.
References
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Benton TG (2012) Managing agricultural landscapes for production of multiple services: the
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www.ebook3000.com
International Law on Plant Genetic Resources
for Food and Agriculture: Towards a New
Balance?
Anna G. Micara
1 Introduction
Access to plant genetic resources for food and agriculture (PGRFAs) and
agrobiodiversity have been subject to considerable changes.1 In the 1950s and
1960s, industrial agriculture triggered an increase of food productivity through
the development of high-yielding crop varieties, leading to the so-called Green
Revolution. At the same time, the dissemination of Mendel’s theories in the early
1900s contributed to the establishment of the plant breeding industry.2 The subse-
quent need for breeder protection was addressed by granting a property right on
plants bred by private companies, and breeding became a profession detached from
the farmers, who for centuries had bred plant varieties. Indeed, the International
Union for the Protection of New Varieties of Plants, internationally known as the
“UPOV” Convention (the French acronym for “Union international pour la protec-
tion des obtentions végétales”), was signed in 1961 by Belgium, France, Germany,
Italy, and the Netherlands. The convention included elements of US and European
(French and German) legislation enacted at the beginning of the twentieth century.3
In the 1970s and 1980s, the process of change intensified because of the
development of genetic engineering and biotechnology. Breeders now use embryo
rescue, cell and tissue culture, and molecular genetics to develop new plant
varieties, although traditional crossing and backcrossing methods are still used.4
1
On the notion of agrobiodiversity see, among others, Santilli (2012), pp. 1–22.
2
Prifti (2015), pp. 11 et seqq.
3
On UPOV origins and history, see Sanderson (2017); Blakeney (2009), pp. 79–85.
4
ten Kate and Laird (1999), p. 128; Chiarolla (2011), pp. 57–61. See also the so-called New Plant
Breeding Techniques.
A.G. Micara (*)

University of Milan, Milan, Italy
e-mail: annagiuliam@gmail.com

54 A.G. Micara
This led to UPOV revisions in 1972, 1978, and 1991, which strengthened breeders’
rights, and, in the 1990s, to the conclusion of the Trade-Related Intellectual
Property Rights (TRIPs) Agreement,5 which obliged all World Trade Organization
(WTO) members to ensure an effective protection of plant varieties.
In the 1960s, the Food and Agriculture Organization (FAO) started to launch
initiatives to promote the conservation, exchange, and use of plant genetic
resources (PGRs). During the 1980s, the Organization adopted the International
Undertaking on Plant Genetic Resources6 and endorsed the concept of farmers’
rights.7 Meanwhile, the United Nations Environment Programme (UNEP) proposed
the negotiation of a Convention on Biological Diversity (CBD), which aims at “the
conservation of biological diversity, the sustainable use of its components and the
fair and equitable sharing of the benefits arising out of the utilization of genetic
resources.”8
In addition, in the aftermath of TRIPs, which binds 164 States and led many
developing countries to adopt UPOV-tailored legislation, developing countries
promoted the debate on plant genetic resource (PGR) protection in forums at the
United Nations. In 2000, the Intergovernmental Committee on Intellectual Prop-
erty, Genetic Resources, Traditional Knowledge and Folklore (IGC) of the World
Intellectual Property Organization (WIPO) was created and is currently discussing
an international instrument to protect genetic resources and traditional knowledge.9
In 2001, the International Treaty on Plant Genetic Resources for Food and Agri-
culture (ITPGRFA),10 the so-called plant treaty, was adopted within the FAO and
has 135 members. The ITPGRFA, which recognizes the enormous contribution of
farmers to crop diversity, sought to restore a balance between plant breeders’ rights
and farmers’ rights and to establish a new system of governance; however, it lacks
adequate implementation and enforcement provisions.
On the other hand, developed countries soon realized that TRIPs was not
sufficiently protecting their industries that were investing abroad. This is why
today, above all due to the difficulties in making progress at multilateral level, as
the WTO Doha Round deadlock shows, the so-called TRIPs-plus phenomenon is
spreading. Developed countries are proposing comprehensive bilateral and regional
5
Trade-Related Aspects of Intellectual Property Rights Agreement, Annex 1C of the Agreement
establishing the World Trade Organization, 1 January 1995, 1869 UNTS 299.
6
The International Undertaking was adopted in 1983. It aimed at “ensure that plant genetic
resources of economic and/or social interest, particularly for agriculture, will be explored, pre-
served, evaluated and made available for plant breeding and scientific purposes” (FAO Resolution
8/83, art. 1) and was a nonbinding “victory” of developing countries, Aoki (2008), p. 75.
7
See Conference Resolution 5/89 as an annex to the International Undertaking on Plant Genetic
Resources. On farmers’ rights, see Santilli (2012), pp. 200–233; Andersen and Winge (2013);
www.farmersrights.org.
8
Convention on Biological Diversity, 29 December 1993, 1760 UNTS 79, art. 1.
9
See infra note 154.
10
International Treaty on Plant Genetic Resources for Food and Agriculture, 29 June 2004, 2400
UNTS 303.
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International Law on Plant Genetic Resources for Food and Agriculture:. . . 55
trade and investment agreements that include provisions on intellectual property

that go further than TRIPs’ “minimum standards”11 and are therefore called
“TRIPs-plus” standards.12 These provisions set higher standards or restrict
TRIPs’ flexibilities or extend TRIPs and TRIPs-plus standards to States that are
not WTO members.
In this context, this chapter examines the provisions in bilateral and regional
trade agreements concerning intellectual property rights and genetic resource
protection. The aim is to assess to what extent they may have a detrimental effect
on the access to and diversity of PGRFA, which are crucial features to tackle food
security, climate change, and biodiversity. Reference will be made mainly to US
agreements, which are the most demanding on these issues, and EU agreements.
However, also the agreements of the European Free Trade Association (EFTA),13
Japan and Canada will be analyzed. At the same time, particular attention will be
devoted to the agreements for Peru and Colombia since these are countries that are
rich in genetic resources and have a strong interest in protecting them. In order to
assess if the system is balanced and coherent, the chapter also focuses on the extent
to which other international instruments for PGR protection affect trade agree-
ments, as well as the potential impact of the draft UN Declaration on the rights of
peasants and other people working in rural areas. Since TRIPs-plus provisions are
spreading rapidly and are “global in nature,” it is crucial to understand whether
current international instruments are efficient safeguards or whether new ones are
needed in order to preserve the access to and diversity of PGRs.
2 The Trips-Plus Era
In order to promote innovation in plant breeding, the 1995 TRIPs Agreement

obliges all 164 WTO members to protect plant varieties by patents or by an
effective sui generis system or a combination of the two approaches (art. 27.2).
When the text of art. 27 was negotiated, developed countries were more interested
in ensuring the patentability of pharmaceuticals (mandatory in TRIPs), while
biotechnological inventions and genetic resources were still at an early stage of
development and were also more controversial for developed countries. Therefore,
negotiating parties left enough policy space and flexibility14 so that WTO members
cannot exclude microorganisms from patentability, whereas they may exclude
plants and must protect plant varieties by an “effective”15 sui generis regime,
which could be accession to UPOV Convention but also a system tailored to
11
On the concept of minimum standards see, among others, Kur (2016), pp. 133 et seqq.
12
See, among others, Grosse Ruse-Khan (2016), pp. 104 et seqq.; Kampf (2007), pp. 87 et seqq.
13
EFTA members are Iceland, Liechtenstein, Norway and Switzerland.
14
See UNCTAD-ICTSD (2005), p. 389; UNDP (2008), pp. 3 et seqq.
15
See Haugen (2014), p. 203.
56 A.G. Micara
national objectives that promotes food security and biodiversity, as well as farmers’
rights. On the other hand, developing countries got better market access to devel-
oped countries’ markets, and, in the field of intellectual property rights, they hoped
to get more transfer of technology and foreign investments.
However, many developing countries decided not to benefit from the flexibility
of art. 27 but to accede to UPOV 1978 or 1991 (in December 1994, UPOV had
27 members while now, after TRIPs, has 72 members) or adopted legislation based
on UPOV without acceding, and few countries decided to introduce patent
protection.16
In addition, “[t]he importance of patents in plants has grown with the recent rise
of agricultural biotechnology, particularly of transgenic crops which have been
commercialized since 1996.”17 In this context, as we will see below, many bilateral
and regional trade agreements include TRIPs-plus provisions aiming at strength-
ening breeders’ rights. Developed countries require accession to the last version of
UPOV (1991) and, mainly the US, more stringent rules on patentability of plants,
therefore narrowing the possibility for States to shape a balanced system and protect
farmers. On the other hand, developing countries conclude these agreements
because of the trade-off, which consists in having preferential market access to
the big markets of developed countries, and, concerning investment agreements, to
attract foreign investment and technology, whereas TRIPs-plus negotiations are
more difficult with BRICS countries.
2.1 UPOV Accession
One of the main features of TRIPs-plus trade agreements is the obligation to accede
to the UPOV Convention. Although to a different extent, most US, EU, and EFTA
agreements include such provision, and accession to the most recent version (1991)
means the adoption of a system that protects more breeders but that, at the same
time, is more restrictive on access and diversity of PGRs.
The US often requires UPOV 1991 accession and managed to obtain even the
accession of Peru and Colombia,18 countries that are particularly rich in genetic
resources. Also, the Trans-Pacific Partnership Agreement (TPP), whose future is
rather uncertain after the US’s withdrawal, provides for such accession.19
16
Deere (2009), p. 88; Antons (2016).
17
Report of the Special Rapporteur Olivier de Schutter, The right to food, Seed policies and the
right to food: enhancing agrobiodiversity and encouraging innovation, UN Doc. A/64/170,
23 July 2009, para 12.
18
US-Colombia Trade Promotion Agreement, 15 May 2012, art. 16.1.3; US-Peru Trade Promotion
Agreement, 1 February 2009, art. 16.1.3. See also US-Oman Free Trade Agreement, 1 January
2009, art. 16.1.3.
19
TPP, art. 18.7.2.(d) https://ustr.gov/sites/default/files/TPP-Final-Text-Intellectual-Property.pdf.
See also TPP, Annex 18-A which provides different provisions concerning New Zealand.
www.ebook3000.com
The new generation of EU’s free trade agreements (FTAs) usually includes the
commitment to accede to UPOV 1991, as the one with South Korea shows,20 but
EU FTAs leave more flexibility to developing countries. The 2012 agreement with
Central America states that parties shall protect plant varieties through an effective
sui generis system (reiterating art. 27.3.b TRIPs) and recognizes that parties have
“the right to provide for exceptions to exclusive rights granted to plant breeders to
allow farmers to save, use and exchange protected farm-saved seed or propagating
material.”21 The previous 2008 agreement with CARIFORUM says that parties
“shall have the right to provide for exceptions to exclusive rights granted to plant
breeders to allow farmers to save, use and exchange protected farm-saved seed or
propagating material”22 and “shall consider acceding” to UPOV 1991.23 This is
contradictory since, if they accede to UPOV 1991, farmers could save seeds only
for use on their own fields,24 but UPOV accession is not mandatory. Also, the
agreement with Peru and Colombia does not provide accession to UPOV, although
the parties are committed to “cooperate” to protect varieties according to UPOV
1991 and, at the same time, to promote the exception to breeders’ rights. This offers
farmers the possibility to use the product of the harvest of a protected variety on
their own holdings for propagating purposes (art. 15.2 UPOV 1991), which is
optional in UPOV.25
EFTA requires UPOV accession in a few FTAs (but not always to the 1991
version26), while Japan and the Association of Southeast Asian Nations (ASEAN)
include best-endeavor clauses in some agreements.27
The 1991 version of UPOV is the most restrictive in terms of access and
diversity of PGRs: that version followed the increased request of protection by
20
Free Trade Agreement between the European Union and its Member States, of the one part, and
the Republic of Korea, of the other part, OJ 2011 L 127/6, art. 10.39; EU-Singapore Free Trade
Agreement, text available on http://trade.ec.europa.eu/doclib/press/index.cfm?id¼961, not
entered into force, art. 11.35.
21
Agreement establishing an Association between the European Union and its Member States, on
the one hand, and Central America on the other, OJ L 346, 15.12.2012, art. 259.3.
22
Economic Partnership Agreement between the CARIFORUM States, of the one part, and the
European Community and its Member States, of the other part, in OJ L 289/I/3, 30.10.2008, art.
149.1.
23
Ibid., art. 149.2.
24
Nadde-Phlix (2014), p. 148.
25
Trade agreement between the European Union and its Member States, of the one part, and
Colombia and Peru, of the other part, OJ L 354, 21.12.2012, art. 232; similar wording in
Association agreement between the European Union and its Member States, of the one part, and
Ukraine, of the other part, OJ L 161/3 29.5.2014, art. 228.
26
See, among others, Free Trade Agreement Between The Republic Of Peru And The EFTA
States, entered into force 1 July 2011 for Peru, Liechtenstein and Switzerland; 1 October 2011 for
Iceland; 1 July 2012 for Norway, art. 6.4.2.(b).
27
See the Agreement between Japan and the Republic of Indonesia for an Economic Partnership
2008, art. 106.3; Agreement establishing the ASEAN-Australia-New Zealand free trade area, art.
9.7.
58 A.G. Micara
plant breeders due to progress in genetic engineering developed in 1970s and 1980s,
therefore widening breeders’ rights and converging to the patent protection system.
UPOV 1991 provides that breeders’ prior authorization is needed not only for the
production for purposes of commercial marketing, offering for sale, and marketing
(art. 5 UPOV 1978) but also for conditioning for the purpose of propagation,
selling, exporting, importing, stocking for the above purposes (art. 14), which
also applies to “essentially derived” varieties (art. 14.5) and, concerning the prop-
agating material, “to harvested material, where this has been obtained through the
unauthorized use of propagating material of the protected variety” (art. 14.2).
Moreover, compared to UPOV 1991, protection is extended from a minimum of
15 to a minimum of 20 years (while it is longer for wine and trees). Members may
restrict breeders’ rights for reasons of public interest (art. 17.1).
Concerning the so-called farmer’s exemption or “farmers privilege,” while the
1978 version implicitly allowed farmers to use saved seeds and to do, to a certain
extent, acts having commercial implications (art. 5 UPOV 1978), the 1991 version
restricts the farmers’ privilege removing the possibility for States to allow farmers
to exchange or sell seeds saved from the harvest of protected varieties. They can
only “use for propagating purposes, on their own holdings, the product of the
harvest which they have obtained by planting, on their own holdings, the protected
variety” (art. 15.2) or essentially derived varieties and “within reasonable limits and
subject to the safeguarding of the legitimate interests of the breeder” (art. 15.2).28
However, UPOV recognizes a breeders’ exemption. UPOV 1978 enabled third
parties to use the variety “as an initial source of variation for the purpose of creating
other varieties or for the marketing of such varieties” (art. 5.3). It therefore
recognized not only the experimental exemption (using a variety for experimental
purposes) but also the research exemption. This means that a third party that bred a
new variety, thanks to the experimental exemption, does not need the authorization
of the holder of the initial variety in order to produce and commercialize the new
one. UPOV 1991 provides that breeders’ rights do not extend to “acts done for the
purpose of breeding other varieties” (art. 15.1. (iii)), therefore still allowing the
exception but significantly restricting its scope of application excluding varieties
essentially derived from another protected variety (the initial variety), “varieties
which are not clearly distinguishable of the protected variety and varieties whose
production requires the repeated use of the protected variety.”29
28
See UPOV, Explanatory Notes on exceptions to the breeder’s right under the 1991 Act of the
UPOV Convention, adopted by the Council at its forty-third ordinary session on October 22, 2009
UPOV/EXN/EXC/1, 22 October 2009, paras 12–28.
29
Ibid., para 10.
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2.2 Patentability of Plants
TRIPs allows the possibility to exclude plants from patentability, and in fact a few
countries still provide such a protection. Another feature of TRIPs-plus agreements
is therefore the extension of patentability scope to plants, although this phenome-
non is, at the moment, circumscribed to US agreements.
The US was the first country to adopt legislation allowing the patentability of
plants in the 1930s, followed by Japan, Australia, and others. The US TRIPs-plus
FTAs extend the patentability scope in several ways. FTAs with Morocco and
Bahrain explicitly say that “[e]ach Party shall make patents available for plants,”30
whereas in some cases US TRIPs-plus agreements implicitly broaden the patentable
subject matter establishing narrower exceptions compared to TRIPs. In this regard,
the agreements with Korea, Jordan, and Australia provide that permitted exceptions
to patentability are “only” those equivalent to exceptions provided for in arts. 27.2
and 27.3.a TRIPs, and therefore plants per se must be patentable.31
Instead, the agreement with Oman provides that parties “may” exclude inven-
tions mentioned in arts. 27.2 and 27.3.a TRIPs from patentability, as well as
“animals other than micro-organisms, and essentially biological processes for the
production of animals other than non-biological and microbial processes.”32 In this
case, plants are not mentioned among the exceptions so they are supposed to be
patentable, but it could also be argued that the list of exceptions is not exhaustive.
This last interpretation would be better supported by a reference to the context of
the agreement, i.e. to the principles of TRIPs embodied in art. 8, according to which
“[m]embers may (. . .) adopt measures necessary to protect public health and
nutrition, and to promote the public interest in sectors of vital importance to their
socio-economic and technological development.” However, the IP chapter in this
agreement does not refer to art. 8 TRIPs, nor does it mention similar objectives for
the IP chapter that could be taken into account as context. Furthermore, it could be
argued that since this provision needs to be interpreted in the light of arts. 31–33 of
the Vienna Convention on the Law of the Treaties (VCTL),33 account shall be taken
of “any relevant rules of international law applicable in the relations between the
parties” (art. 31.3.c VCTL) such as the right to food, which refers to availability and
safety of food and is enshrined in the Universal Declaration of Human Rights (art.
25) and in the International Covenant on Economic, Social and Cultural Rights
30
US-Bahrain Free Trade Agreement, 11 January 2006, art. 14.8.2; similar wording in
US-Morocco Free Trade Agreement, 15 June 2004, art. 15.9.2.
31
See US-Korea Free Trade Agreement, 15 March 2012, art. 18.8.2; US-Jordan Free Trade
Agreement, 1 January 2010, art. 18; US-Australia Free Trade Agreement, 1 January 2005, art.
17.9.2, according to which: “[e]ach Party may only exclude from patentability: (a) inventions, the
prevention within its territory of the commercial exploitation of which is necessary to protect ordre
public or morality,(. . .); b) diagnostic, therapeutic and surgical procedures for the treatment of
humans or animals.”
32
US-Oman Free Trade Agreement, 1 January 2009, art. 15.8.2.
33
Vienna Convention on the Law of the Treaties, 27 January 1980, 155 UNTS 331.
60 A.G. Micara
(ICESCR), which is binding for almost all members of the International Commu-
nity.34 This leads to the conclusion that, at least in relevant cases, plants should not
be patentable: however, the US has not ratified the ICESCR, which makes such an
outcome quite unlikely (nor is the US part of the CBD).
A few US agreements extend patentability to “any new uses or methods of using
a known product, including new uses of a known product for the treatment of
humans and animals.”35 This poses further problems that have been already raised
in the vast literature on pharmaceutical patents and the right to health after the
conclusion of TRIPs.36 Indeed, nowadays, firms “strive to obtain patents in the
largest world markets to protect these new uses and modifications,”37 and R&D is
increasingly focused on these new therapeutic uses involving minor modifications
rather than on the development of new drugs.38 Also in the field of PGRs, extending
patents on new uses of existing inventions could extend the duration of a monopoly
without promoting innovation and hindering research.
Concerning the US agreements with Colombia and Peru, which are countries
particularly rich in genetic resources and cautious on these issues, both reiterate the
exceptions from patentability set out in arts. 27.2 and 27.3 TRIPs and add that a
contracting party “that does not provide patent protection for plants by the date of
entry into force of this Agreement shall undertake all reasonable efforts to make
such patent protection available.”39 Therefore, patentability is not mandatory, but
the extent of efforts that should be made is unclear. According to some authors,
reasonable efforts include “introducing a parliamentarian debate on the matter or
presenting a bill to expand the scope of the patentable subject (. . .) even if the
parliament does not approve.”40
Finally, concerning TPP, only the US proposed that parties should make patents
available for inventions for plants and animals, but all other parties opposed this
provision. According to the final version, parties may exclude plants from patent-
ability, but “each Party confirms that patents are available at least for inventions
that are derived from plants” (art. 18.37.4).
At the same time, usually US agreements include the exception concerning
“inventions, the prevention within its territory of the commercial exploitation of
which is necessary to protect ordre public or morality (. . .)” (equal to art. 27.2
34
International Covenant on Economic, Social and Cultural Rights, 3 January 1973, 993 UNTS 3.
35
US-Morocco Free Trade Agreement, 15 June 2004, art. 15.9.2; US-Oman Free Trade Agree-
ment, 1 January 2009, art. 15.8; US-Bahrain Free Trade Agreement, 11 January 2006, art. 14.8.2;
TPP, art. 18.37.2.
36
See, among others, Chamas et al. (2010).
37
Ibid., p. 64.
38
Ibid., pp. 64–65. See also Pires de Carvalho (2014), pp. 278–284.
39
US-Colombia Trade Promotion Agreement, 15 May 2012, art. 16.9; US-Peru Trade Promotion
Agreement, 1 February 2009, art. 16.9.3. According to those articles also “[a]ny Party that
provides patent protection for plants or animals on or after the date of entry into force of this
Agreement shall maintain such protection.”
40
Vivas-Eugui and Oliva (2010), p. 6.
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TRIPs wording). This exception should not be underestimated. Although it is no

longer possible for WTO members to argue that patenting living material as such is
contrary to morality41 (therefore, parties cannot exclude patents on plant and
animals as such, but each case must be considered on its own merits), ordre public
and morality are open concepts that should be interpreted and applied at national
level.42 The notion of ordre public has a broad meaning since it corresponds “to
those values that collectively inform the organization of society—including living
in peace and security”43—and could therefore imply the possibility to exclude
patents that could have a deep detrimental effect on the agricultural system and
farmers’ subsistence. Morality “is linked to any belief founded ‘on the totality of the
accepted norms which [are] deeply rooted in a particular culture.’”44 In addition,
protecting ordre public or morality includes “to protect human, animal, or plant life
or health,” which could be interpreted as including not only medical care but also
the fulfillment of basic needs such as adequate food, safe water, or safety,45 and
inventions involving “serious prejudice to the environment” could be excluded
from patentability. Furthermore, these two cases are not exhaustive, so other basic
needs may be taken into account.
Notwithstanding this, exclusion from patentability is allowed only if it is nec-
essary to prohibit commercialization because of the risk that commercial exploita-
tion endangers ordre public and the other mentioned cases. It is therefore not
possible, for example, to exclude patents in order to promote the diffusion of an
invention in the interest of food security or exclude patents for a commercialized
invention that negatively affects farmers’ subsistence or the environment,46 which
significantly narrows the scope of the exception. At the same time, the prohibition
of commercialization should not already be in force, and the State can prove the
necessity to prohibit it to exclude patents. This could be interpreted in an evolu-
tionary manner and taking into account other international obligations (which is,
however, difficult due to the fact that, as noted, US FTAs do not include provisions
such as art. 8 TRIPs, and the US is not a member of ICESCR or CBD).47 Moreover,
the fact that the mentioned risks concerning ordre public should stem from the
commercial exploitation of the invention (not from the invention per se) means that
the exception cannot be invoked for noncommercial uses (it is possible to carry out
research on nonpatentable inventions). Also, risks should be located in the territory
of the member, making it not possible to consider risks affecting other countries.48
41
Pires de Carvalho (2014), pp. 311–312.
42
Bonadio (2008), p. 83.
43
Pires de Carvalho (2014), p. 312.
44
Ibid., p. 312.
45
UNCTAD-ICTSD (2005), p. 376.
46
See UNDP (2008), p. 14.
47
See “necessity” in GATT art. XX. Xiong (2012), pp. 97–101.
48
Bonadio (2008), p. 88.
62 A.G. Micara
Concerning other TRIPs-plus agreements, the EU does not provide patenting

plants, nor do Japan or EFTA and Canada. However, another TRIPs-plus measure
should be underlined that very often features both the US and EU agreements. This
measure is the commitment to accede to the Budapest Treaty on the International
Recognition of the Deposit of Microorganisms of 1977 aiming at facilitating the
deposit of microorganisms. Since the boundaries between plants and microorgan-
isms, broadly interpreted, are not well defined, this could facilitate patents on
plants49 (depositary authorities accepted algae, plant tissue cells, lichens, and
plant spores50). In this regard, the US–Jordan FTA establishes that in the event a
“sufficient” written description of the invention is not possible, “each Party shall
require a deposit with an “international depository authority,” as defined in the
Budapest Treaty.”51
2.3 Biodiversity Provisions
A specific problem concerning IP protection of plants involves biopiracy, i.e. the

appropriation of genetic material, generally from developing countries (providers),
without authorization and without compensation by companies of developed coun-
tries (recipient countries).52 For example, in the case of the Enola bean patent, a US
patent on yellow beans generally used in Mexico (which could be considered as
traditional knowledge), the holder sued the importers for counterfeiting, but then
the patent was revoked for lack of inventiveness.53 Indeed, patents should be
granted to inventions that are new, nonobvious, and capable of industrial applica-
tion, but these requirements are not defined by TRIPs and are implemented in
different ways by WTO members. In particular, patent offices should make an
“assessment of whether the disclosed invention in the patent application is quanti-
tatively different from the body of information and knowledge already disclosed in
the public domain.”54 However, this body of information (prior art) could be
geographically limited, could exclude some kind of information, and could be
interpreted extensively or restrictively. In fact, patent offices may grant
low-quality patents, referring to the low threshold considered necessary in terms
of the requirements for a genetic resource to be patented, and private companies
have (mis)appropriated genetic resources. In addition, considering that 90% of
world genetic resources are in developing countries, there is the problem of benefit
49
Vivas-Eugui and Oliva (2010), pp. 6–7.
50
Malbon et al. (2014), p. 441.
51
US-Jordan Free Trade Agreement, 1 January 2010, art. 4.21 (emphasis added).
52
On biopiracy and misappropriation see, among others, Vivas-Eugui (2012), pp. 4–8; Blakeney
(2009), pp. 97–102.
53
United States Court of Appeals for the Federal Circuit, In Re Pod-ners, L.L.C., 10 July 2009.
54
Malbon et al. (2014), p. 418.
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sharing for both countries, the provider and the recipient countries.55 Also, the
UPOV 1991 Convention, which provides for different requirements (novelty,
distinctiveness, uniformity, and stability), does not have any safeguards concerning
biopiracy.
These issues should be analyzed in the context of the link between intellectual
property and biodiversity and, in particular, in the context of the relationship
between TRIPs and the CBD. The Convention embodies certain principles as the
sovereign rights of States over their natural resources (art. 15.1). It provides that
access to genetic resources “shall be on mutually agreed terms” (art. 15.4) and
subject “to prior informed consent of the Contracting Party providing such
resources” (art. 15.5), as well as for fair and equitable sharing of benefits from
the use of genetic resources (art. 15.7).
The question of the consistency between TRIPs (art. 27.3.b) and CBD is not over
yet. Indeed, due to controversy in negotiating patent subject matter between the EC
and the US,56 it has been agreed that art. 27.3.b should be reviewed 4 years after the
date of entry into force of TRIPs. However, if in 2000s the question was much
debated57 and a majority of members (including the EU, Brazil, China, India, Peru,
the ACP Group, the African Group, and many others) proposed amending TRIPs in
order to include “a mandatory requirement for the disclosure of the country
providing/source of genetic resources, and/or associated traditional knowledge for
which a definition will be agreed, in patent applications” and to negotiate on prior
informed consent and access and benefit sharing,58 it is very unlikely that this will
ever be achieved at multilateral level.59
Therefore, developing countries, especially Peru and Colombia, are trying to
negotiate provisions regarding gaining access to genetic resources and biodiversity
in FTAs. Indeed, their agreements with the US incorporate, for the first time in US
FTAs, an “understanding regarding biodiversity and traditional knowledge,” which,
considering that the US is not even part of the CBD, is very significant.60 Parties
recognize the importance of the basic principles of prior informed consent and
access and benefit sharing of the CBD, as well as the importance of “promoting
quality patent examination to ensure the conditions of patentability are satisfied.”61
55
See, among others, ten Kate and Laird (1999), pp. 142–154.
56
Malbon et al. (2014), p. 391.
57
See Review of the provisions of article 27.3(b) summary of issues raised and points made, IP/C/
W/369/Rev. 19 March 2006; Pires de Carvalho (2014), pp. 334 et seqq.
58
Communication from Albania, Brazil, China, Colombia, Ecuador, the European Communities,
Iceland, India, Indonesia, the Kyrgyz Republic, Liechtenstein, the Former Yugoslav Republic of
Macedonia, Pakistan, Peru, Sri Lanka, Switzerland, Thailand, Turkey, the ACP Group and the
African Group, Draft Modalities for TRIPS related issues TN/C/W/52, 19 July 2008, paras 4–5.
59
See Nairobi Ministerial Declaration, 21 December 2015, WT/MIN(15)/DEC.
60
Vivas-Eugui and Oliva (2010), p. 8.
61
US-Peru Trade Promotion Agreement, 1 February 2009, and US-Colombia Trade Promotion
Agreement, 15 May 2012, Understandings Regarding Biodiversity And Traditional Knowledge:
“Each Party shall endeavor to seek ways to share information that may have a bearing on the
64 A.G. Micara
This is because, as mentioned, low-quality patents could lead to misappropriation

of genetic resources and traditional knowledge. Of course, these are programmatic
provisions, but at least they leave enough policy space for Peru and Colombia to
take measures to protect biodiversity, and they could also have an important role in
the interpretation of FTA provisions on intellectual property.
Although the TPP provisions on cooperation on traditional knowledge (art.
18.16) are essentially programmatic, they go even further on the crucial aspect of
patent quality since “Parties shall endeavour to pursue quality patent examina-
tion”62 (art. 18.16.3) through several measures (art. 18.16.3. a–d).
Concerning the EU FTAs, already in 2007 the EU-CARIFORUM included
provisions on biodiversity based on existing obligations under the CBD and an
optional provision on disclosure.63 Nowadays, the IP chapters of the last generation
agreements usually include a section on protection of biodiversity and traditional
knowledge. This is an achievement for developing countries, although in many
cases biodiversity-related provisions reflect existing obligations and lack manda-
tory obligations.64 Concerning the agreement with Peru and Colombia, some best-
endeavor clauses are important.65 It should also be noted that often EU FTAs,
which try to have a “multilateral approach,” include provisions on cooperation in
multilateral forums, which, however, have a minor impact.66
Finally, it is important to underline that, with EFTA, Colombia and Peru
managed to achieve a mandatory obligation on disclosure, according to which
“the Parties shall require that patent applications contain a declaration of the origin
or source of a genetic resource, to which the inventor or the patent applicant has had
patentability of inventions based on traditional knowledge or genetic resources by providing:

(a) publicly accessible databases that contain relevant information; and (b) an opportunity to cite,
in writing, to the appropriate examining authority prior art that may have a bearing on
patentability.”
62
Emphasis added.
63
Parties “may require as part of the administrative requirements for a patent application
concerning an invention which uses biological material as a necessary aspect of the invention,
that the applicant identifies the sources of the biological material used by the applicant and
described as part of the invention.” Economic Partnership Agreement between the CARIFORUM
States, of the one part, and the European Community and its Member States, of the other part, in OJ
L 289/I/3, 30.10.2008, art. 150.4.
64
Nadde-Phlix (2014), p. 151.
65
For example “to facilitate the exchange of information about patent applications and granted
patents related to genetic resources and associated traditional knowledge, with the aim that in the
substantive examination, particularly in determining prior art, such information can be consid-
ered” (Trade agreement between the European Union and its Member States, of the one part, and
Colombia and Peru, of the other part, OJ L 354, 21.12.2012, art. 201.9).
66
Free Trade Agreement between the European Union and its Member States, of the one part, and
the Republic of Korea, of the other part, OJ 2011 L 127/6, art. 10.40; Economic Partnership
Agreement between the CARIFORUM States, of the one part, and the European Community and
its Member States, of the other part, in OJ L 289/I/3, 30.10.2008, art. 150.5.
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access,”67 and even enforcement measures related to that.68 Thus, if a US/EU patent
holder wants to patent in Switzerland and disclosure shows, for example, a case of
misappropriation, this provision could also have repercussions in their home
countries.
In conclusion, it is true that developing countries have managed to include these
provisions in FTAs, and this is a very important step. However, the results are not
particularly groundbreaking since they are most of exhortatory nature69 and were
negotiated against other TRIPs-plus provisions. As for Peru and Colombia,
although they need to “undertake all reasonable efforts” to grant patentability of
plants and accede to UPOV 1991, they have not achieved much in terms of binding
provisions on this, and where they achieved mandatory disclosure, they had to
negotiate provisions on the Budapest treaty and marketing approval extension, as
will be discussed below.
2.4 The Extension of the Patent Exclusive Rights
Apart from the scope of patentability, another main feature of many US agreements,
and to a less extent of EU and EFTA agreements, is to extend the exclusive rights of
patent holders. This extension also has deep repercussions concerning access and
diversity of PGRFAs.
The US–Peru agreement and the TPP reiterate art. 30 TRIPs exceptions, which
are applicable if three cumulative conditions are fulfilled: they have to be limited,
they must not unreasonably conflict with a normal exploitation of the patent, and
they should not unreasonably prejudice the legitimate interests of the patent owner,
taking account of the legitimate interests of third parties.70 According to one author,
the use by farmers of patented seeds on their own holdings would be “limited” since
it refers only to next generations of the patented seeds and would not unreasonably
67
Free Trade Agreement Between The Republic Of Peru And The EFTA States, entered into force
1 July 2011 for Peru, Liechtenstein and Switzerland; 1 October 2011 for Iceland; 1 July 2012 for
Norway, art. 6.5.5; US-Colombia Trade Promotion Agreement, 15 May 2012, art. 6.5.5. They also
provide that “As far as provided in their national legislation, the Parties will also require the
fulfilment of prior informed consent and they will apply the provisions set out in this Article to
traditional knowledge as applicable.”
68
Free Trade Agreement Between The Republic Of Peru And The EFTA States, entered into force
1 July 2011 for Peru, Liechtenstein and Switzerland; 1 October 2011 for Iceland; 1 July 2012 for
Norway, art. 6.6.6; US-Colombia Trade Promotion Agreement, 15 May 2012, art. 6.5.6: “[t]he
Parties, in accordance with their national laws, shall provide for administrative, civil or criminal
sanctions if the inventor or the patent applicant willfully make a wrongful or misleading declara-
tion of the origin or source. The judge may order the publication of the ruling.”
69
See also ASEAN, Australia, New Zealand Free Trade Agreement, art. 8: Subject to each Party’s
international obligations, each Party may establish appropriate measures to protect genetic
resources, traditional knowledge and folklore; Canada-Peru, environment Chapter.
70
US-Peru Trade Promotion Agreement, 1 February 2009, art. 16.9.3; TPP, art. 18.40.
66 A.G. Micara
conflict with the normal exploitation of the patent, nor would it unreasonably
prejudice the legitimate interests of the patent owner since it is a domestic use.71
However, this opinion is not shared by other authors,72 and, also, commercial
activities such as exchanging and selling seeds would not be consistent with art. 30.
Moreover, art. 30 should allow the experimental exemption73 but would not allow
the research exemption so that the party that invented something through an
experimental exemption would need the authorization of the patent holder in
order to produce and commercialize the invention.74 According to the Special
Rapporteur to the Right to Food, art. 30 TRIPs could be read in the sense that a
research exemption is possible, if interpreted broadly and in the light of arts. 7 and
8 of TRIPs.75 However, equivalent or similar principles and objectives are usually
not present in many US FTAs, and therefore this interpretation is unlikely with
regard to these FTAs.
Given that these provisions could be interpreted by an arbitral panel76 (many
FTA dispute settlement chapters leave the possibility of choosing either the WTO
Dispute Settlement Body (DSB) or a forum under the FTA77), it could in principle
be argued that this could lead to different results compared to WTO DSB. However,
since US FTAs reiterate art. 30 TRIPs, it is unlikely that WTO case law on this
would be neglected. At the same time, given that the US is not part of relevant
agreements, there is not much space to interpret it in the light of other international
instruments.
Also worth mentioning are the stockpiling exception and the regulatory review
exception, which allow the marketing of generics immediately after the deadline of
the patent. Indeed, the stockpiling exception allows third parties to store products
intended for sale after the patent expires, while the regulatory review exception
allows third parties without holder consent to use the patented invention in order to
develop and submit the information necessary to obtain regulatory marketing
approval. This is an issue that emerged in the pharmaceutical sector and was judged
by a WTO panel, according to which the stockpiling exception is not limited
according to art. 30 TRIPs, while the regulatory review exception is consistent
with that article.78
71
Bonadio (2008), pp. 221–222.
72
Helfer (2004), pp. 49–50; UNCTAD-ICTSD (2005), p. 395.
73
UNCTAD-ICTSD (2005), p. 437.
74
Bonadio (2008), pp. 94–97; Helfer (2004), p. 49.
75
23 July 2009, para 30. See also Prifti (2015), p. 109ff.
76
See for example US-Peru Trade Promotion Agreement, 1 February 2009, dispute settlement
chapter.
77
On forum choice in FTAs see Xiong (2012), pp. 297 et seqq.
78
WTO, Report of the panel, Canada – Patent Protection of Pharmaceutical Products, DS114.
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In this context, some FTAs reduce the flexibility concerning the regulatory
review exception. Firstly, both US and EU TRIPs-plus FTAs often provide an
extension of the duration of the exclusive rights for pharmaceuticals to compensate
the holder for the reduction of the provided duration (usually 20 years) due to the
administrative marketing approval process. The extension could be determined
(i.e., up to 5 years79). This means that manufacturers of generics should wait longer
to start selling generic versions. In addition, being subject to the nondiscrimination
principle,80 these provisions should be granted also to patents in other fields, i.e. in
the case of genetically modified organisms (GMOs), which require complex market
approvals. Moreover, while many US agreements refer to “unreasonable” delays in
marketing approvals (i.e., more than a certain amount of years),81 some EU
agreements provide for the extension of the duration of rights as such, though not
if unreasonable delays in the marketing approval process are involved.82
Secondly, FTAs reduce flexibility concerning data exclusivity, which also
results in an extension of patent duration. Indeed, art. 39.3 TRIPs was the first
international standard on data protection,83 which is a “sui generis system of
industrial property,”84 but its scope of application is subject to different interpreta-
tions concerning governmental agencies’ use of data for granting marketing
approval of generics.85 Some FTAs, especially those of the US, Switzerland, and
the EU, provide for longer protection periods for data and test trials of the protected
innovation.86 This results in longer exclusion of the possibility for other researchers
to create generic versions and therefore higher prices (of patented products) for a
longer period.87
Some US FTAs also reduce TRIPs’ flexibility with regard to compulsory
licensing. While TRIPs (art. 31) left flexibility on the grounds on which those
79
EU-Singapore Free Trade Agreement, not entered into force, art. 11.31.
80
Patents shall be available and patent rights enjoyable without discrimination as to the place of
invention, the field of technology (. . .) (art. 27.1 TRIPs). See Pires de Carvalho (2014), pp. 251 et
seqq. See also Kur and Levin (2011), pp. 576 et seqq.
81
US-Bahrain Free Trade Agreement, 11 January 2006, art. 14.8.6; US-Singapore Free Trade
Agreement, 1 January 2004, art. 16.7.7.
82
EU-Singapore Free Trade Agreement, not entered into force, art. 11.31; Free Trade Agreement
between the European Union and its Member States, of the one part, and the Republic of Korea, of
the other part, OJ 2011 L 127/6, art. 10.35; CETA Chapter 22, art. 9.2.
83
See Correa (2010), pp. 718–720; Pires de Carvalho (2014), pp. 572 et seqq.
84
85
Ibid., pp. 550 et seqq.
86
US-Oman Free Trade Agreement, 1 January 2009, art. 15.9; Free Trade Agreement between the
EFTA States and the Republic of Lebanon, Annex V, art. 4; Free Trade Agreement between the
EFTA States and the Republic of Chile, Annex XII, 1 December 2004, art. 4.2; Trade agreement
between the European Union and its Member States, of the one part, and Colombia and Peru, of the
other part, OJ L 354, 21.12.2012, art. 231. See Correa (2010), pp. 723–725.
87
UNDP (2008), p. 26.
68 A.G. Micara
licenses could be granted,88 the US agreement with Jordan limits compulsory

licenses since they can be authorized only to remedy anticompetitive practices in
case of public noncommercial use or national emergency or other circumstances of
extreme urgency and in case of nonworking of patents.89 In the agreement with
Australia, grounds are restricted and, concerning cases of public noncommercial
use, or of national emergency, or other circumstances of extreme urgency, also
certain conditions of granting are established.90 These provisions therefore make it
impossible to grant compulsory licenses to protect the right to food as provided for
by certain sui generis systems91 or to allow the commercialization of an invention
that depends on a previous patent (allowing a sort of research exemption).92
Finally, certain US agreements set restrictions on patent revocation providing
that parties “shall provide that a patent may be revoked only on grounds that would
have justified a refusal to grant the patent,”93 while TRIPs only provide that “[a]n
opportunity for judicial review of any decision to revoke or forfeit a patent shall be
available” (art. 32), leaving grounds for revocation to be determined by national
law.94 The TRIPs-plus provision on revocation in US FTAs therefore clarifies the
matter, preventing the possibility of revoking a patent that fulfills relevant criteria
(novelty, inventiveness, and industrial applicability) on grounds of public interests,
i.e. if, after being granted, it appears that the patent undermines the right to food or
an event of extreme urgency, which makes it necessary to have access to a material.
88
See Pires de Carvalho (2014), pp. 396–397.
89
US-Jordan Free Trade Agreement, 1 January 2010, art. 4.20.
90
In particular “(i) the Party shall limit such use to use by the government or third persons
authorized by the government; (ii) the Party shall ensure that the patent owner is provided with
reasonable compensation for such use; and (iii) the Party may not require the patent owner to
provide undisclosed information or technical know-how related to a patented invention that has
been authorized for use in accordance with this paragraph” (US-Australia Free Trade Agreement,
1 January 2005, art. 17.9.7; US-Singapore Free Trade Agreement, 1 January 2004, art. 16.7.6.
91
See AU Model allowing compulsory licensing and restriction of rights in case of where food
security or nutritional or health needs are adversely affected, where a high proportion of the plant
variety offered for sale is imported, where requirements of the farming community for propagating
material of a particular variety are not met where it is considered to promote public interest for
socio-economic reasons and for developing indigenous and other technologies, any other reason
that the government deems necessary in the public interest, in situations of emergency or to
alleviate poverty; see also Santilli (2012), pp. 98–99.
92
On this possibility in TRIPs see Bonadio (2008), pp. 222 et seqq.
93
US-Bahrain Free Trade Agreement, 11 January 2006, art. 14.8.4 which provides also that
“[a] Party may also provide that fraud, misrepresentation, or inequitable conduct may be the
basis for revoking or holding a patent unenforceable. Where a Party provides proceedings that
permit a third party to oppose the grant of a patent, a Party shall not make such proceedings
available prior to the grant of the patent.” See also US-Australia Free Trade Agreement, 1 January
2005, art. 17.9.5 and US-Morocco Free Trade Agreement, 15 June 2004, art. 15.9.5; TPP, art.
18.39.
94
Malbon et al. (2014), p. 520. To be noted that US opposed Indian interpretation that revocation
would be legitimate if compulsory licenses were not feasible on ground of public interest, see Pires
de Carvalho (2014), pp. 477–478.
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At the same time, this should not prevent the revocation of low-quality patents. In
addition, revocation could also be subject to FTA investment chapters since it
amounts to an expropriation.
2.5 TRIPs-Plus as “Global” Provisions
Overall, TRIPs-plus provisions narrow the flexibility left by TRIPs and extend
breeders’ rights. Although bilateralism is not a new phenomenon, for agreements
signed after the TRIPs’ entry into force, the most-favored-nation (MFN) clause
applies, which makes the relevant TRIPs-provisions “global.”
In fact, the TRIPs’ MFN clause provides that “any advantage, favour, privilege
or immunity granted by a Member to the nationals of any other country shall be
accorded immediately and unconditionally to the nationals of all other Members”
(art. 4). According to the mainstream literature, “it is clear that TRIPS-plus pro-
visions in FTAs are global in nature”95 because when a country concedes an
advantage, i.e. the patentability of plants and a broader right of exclusive, to the
nationals of another country (even not member of the WTO) through FTAs, the
highest level of protection of intellectual property needs to be conceded to the
nationals of all WTO members. However, according to one author, the MFN clause
should be interpreted not extensively but in the light of the General Agreement on
Tariffs and Trade (GATT) jurisprudence,96 and therefore it should be possible to
grant an “advantage,” i.e. restricted grounds to grant compulsory licenses, only to
the nationals of the FTA’s counterpart without extending it to the nationals of all
WTO members.
It is also interesting to further what happens when the “advantage” is reduced in
a subsequent agreement. Pires de Carvalho refers to the fact that US provisions on
patents in bilateral agreements are very similar, but they have been reduced in the
Peru and Colombia FTAs (for example, there is no extension of terms in order to
compensate for unreasonable delays in obtaining marketing approval). Is it possible
to say that this reduction applies to nationals of Bahrain and Oman, which signed
FTAs that foresee higher standards? According to Pires de Carvalho, since Bahraini
and Omani generic manufacturers and importers would have an advantage (if Peru
and Colombia did not have trade concession reduced in exchange for reduced
TRIPs-plus commitments) “to deny Omani and Bahraini generic companies the
right to enjoy lower concessions to foreign pharmaceutical companies would be a
violation of Article 4.”97 The broad notion of advantage is also related to the notion
of “protection of intellectual property,” mentioned in art. 4 TRIPs. In this regard,
footnote 3 of art. 3 TRIPs clarifies that the word “protection” refers to “matters
95
Emphasis added. Aleman (2014), pp. 67–68. See also Kampf (2007), pp. 93–100.
96
Ranjan (2007), pp. 8–15.
97
70 A.G. Micara
affecting the availability, acquisition, scope, maintenance and enforcement of

intellectual property rights as well as those matters affecting the use of intellectual
property rights specifically addressed in this Agreement.” Therefore, it could be
argued, concerning biodiversity provisions, that the MFN applies because the IP
holders and potential IP holders could “indirectly” benefit, i.e., from disclosure
since this avoids misappropriation and therefore leaves access to resources that
could be, if modified, patented afterwards.
Another interesting case is when developing countries negotiate a provision
contrary to a previous provision of another FTA. If a developed country manages
to make its counterpart accede to UPOV 1991, then potential exceptions that
developing countries negotiated in other agreements would lose their value and
the UPOV protection would apply to nationals of all WTO members. However, in
the opposite case (i.e., Central American countries are obliged to accede to UPOV
1991 by the US agreement, while the subsequent agreement with the EU does not
provide for UPOV 1991 accession and instead provides the possibility to grant
broad farmers’ exemptions98), it has been argued that “as a later and more specific
agreement, the AA may prevail in the relations between EU and CA States,”99 and
therefore the farmers’ exception would apply vis- a-vis EU holders.
Finally, although the MFN might be interpreted in restrictive ways that make
TRIPs-plus provisions less “global,” it cannot be neglected that those provisions are
also subject to national treatment, and consequently “[e]ach Member shall accord to
the nationals of other Members treatment no less favourable than that it accords to
its own nationals” (art. 3 TRIPs). In addition, the investment chapter may provide
that parties accord national treatment with respect to establishment of their invest-
ments so that it is then not possible to discriminate on the basis of the nationality of
the investor.100
3 The Impact of Trips-Plus Standards on Access

and Diversity of Plant Genetic Resources
Having analyzed the relevant TRIPs-plus provisions, it is now crucial to assess to

what extent these provisions (negatively) affect access and diversity of PGRFAs,
which are key features to tackle food security, climate change, and biodiversity.
Despite the decreasing trend, 795 million people, or about one in eight people in the
world, are still undernourished,101 and according to the FAO, “by 2050, the world
98
US-Dominican Republic-Central America FTA (CAFTA-DR), art.15.1.5.a; Agreement
establishing an Association between the European Union and its Member States, on the one
hand, and Central America on the other, signed 29.6.2012, art. 259.3.
99
Nadde-Phlix (2014), pp. 148–149.
100
Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and
the European Union and Its Member States, of the other part, OJ 2017 L11, art. 1.
101
FAO et al. (2015), p. 8.
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will need to produce twice as much food as was produced in 2000 (...) using less
water and other inputs” to feed the growing world population.102 Thus, better
conservation and the use of PGRFAs, as well as boosting plant breeding, are vital
to address food security and climate change.103 International cooperation is also
fundamental because of the global interdependence on access to plant genetic
resources (no country is self-sufficient in this field).104 Furthermore, the First
Report on the State of the World’s Plant Genetic Resources for Food and Agricul-
ture showed that only 30 crops provide 90% of the world’s calorie intake, and of
these “wheat, rice and maize alone provide more than half of the global plant-
derived energy intake.”105 Genetic erosion and monocultures mean more vulnera-
ble crops, therefore undermining food security, as well as the possibility of having a
diversified diet.106
It should be noted, first, that the sui generis system to protect plant varieties
provided by the TRIPs agreement could be the best option to balance innovation,
food security, and biodiversity. Plant protection should be tailored to national
objectives and to the conditions of the national seed and agricultural system and
the breeding industry in order to benefit from these positive effects.107 The protec-
tion of breeders’ rights could positively affect domestic seed companies in devel-
oping countries, i.e. to “stabilize the industry and protect companies from
competitors,”108 but also the very important role of farmers in breeding and the
features of the agricultural system need to be taken into account. Therefore,
extending UPOV 1991 and patent protection to developing countries could prevent
specific national objectives from being taken into account. Developed countries
often have a different agricultural system and a stronger seed industry; thus, they
benefit more from extending breeders’ protection even though the biodiversity and
access to plants also need to be protected.
Concerning patentability, in certain cases, patentability per se could undermine
food security or biodiversity, whereas it might be useful not to protect the most
common national crops in order to foster food security or to exclude patents on
inventions that negatively affect the environment and biodiversity. The same could
be said for UPOV 1991, which applies to all plant genera and species (whereas
under UPOV 1978, members could still exclude some of them). Moreover, a
question arises regarding the interpretation of “essentially biological processes”
102
FAO (2010), p. 1. See also FAO (2016).
103
104
See, among others, ten Kate and Laird (1999), p. 118.
105
FAO (1997), p. 43. And concerning particularly rice, in China, “the number of local rice
varieties being cultivated has declined from 46,000 in the 1950s to slightly more than 1,000 in
2006” Global Biodiversity Outlook 3, https://www.cbd.int/gbo3/?pub¼6667&section¼6710.
106
Santilli (2012), p. 17.
107
Ibid., p. xvi. On examples of sui generis approaches see UNDP (2008), pp. 11 et seqq. See in
particular the African Model Law for the Protection of the Rights of Local Communities, Farmers
and Breeders, and for the Regulation of Access to Biological Resources.
108
World Bank (2006), p. xv.
72 A.G. Micara
for the production of plants (whose patentability could be excluded according to

TRIPs), as shows a decision of the European Patent Office Board of Appeal on
patents on broccoli and tomatoes obtained through classical plant breeding pro-
cesses such as crossing and selection.109
A major problem is also the low quality of patents, with special regard to novelty
and inventiveness. This has led to misappropriation of genetic resources and
biopiracy and, at the same time, could undermine research and innovation. In the
field of plant innovation, previous inventions (incremental innovation)110 are nec-
essary so that access to plants and access to protected germplasm are crucial for the
plant biotechnology research sector in order to boost plant breeding. Since the
assessment of requirements depends on the national authorities, developing coun-
tries at least could interpret novelty and inventiveness in a restrictive manner, but
the fact that the US and other large markets allow certain low-quality patents needs
to be addressed. This highlights the importance of the provisions on the quality of
patents in US agreements.
Furthermore, low-quality patents could affect the functioning of the ITPGRFA
multilateral system, whose aim is to facilitate access to PGRFAs and to share the
benefits in a fair and equitable way. In fact, it is possible to patent a genetic resource
from the system, if modified,111 but this involves the question of the threshold of
inventiveness (i.e., to isolate a gene from a seed),112 which could be detrimental for
the facilitated access to PGRFAs, and also concerns the problem of enforcement on
potential infringing patents.
Concerning the extent of the patent holders’ exclusive rights, FTAs, especially
those of the US, usually extend them: this involves that manufacturers have to wait
longer to produce generics and that exceptions are narrower, also in the field of
compulsory licenses, which could undermine research.113 While the research
exception is still available in UPOV 1991, although to a limited extent, TRIPs-
plus provisions on patents in US agreements only seem to allow the experimental
exemption (even though this could actually discourage innovation, which is the
main goal of IP).114
In addition, a narrow farmer exception is a problem because saving and exchang-
ing seeds is important for the food security of many rural communities and also to
109
See EPO, cases G 2/12 and 13, 25 March 2015. See Metzger (2016).
110
Bonadio (2008), pp. 223–224.
111
According to art. 12.3.c ITPGRFA “[r]ecipients shall not claim any intellectual property or
other rights that limit the facilitated access to the plant genetic resources for food and agriculture,
or their genetic parts or components, in the form received from the Multilateral System.”
112
Santilli (2012), p. 140.
113
23 July 2009, para 32.
114
On patents and innovation in the agricultural fields see, among others, Chiarolla (2011),
pp. 33–50.
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preserve agricultural biodiversity.115 Indeed, UPOV (and patents) “denies farmers’

role as innovators and holders of knowledge and practices which are essential for
agricultural development, and fails to recognize that the vast agricultural diversity
would not exist were farmers not able to innovate and develop new varieties and
agricultural systems,”116 while “historically, plant breeding and seed production
have been carried out by farmers, who continue to select and improve their
varieties.”117
More generally, the impact of TRIPs-plus is to boost private plant breeding. On
the one hand, this could contribute to food security and safety since some plant
varieties invented are of a better quality, have improved nutritional values, are virus
resistant, or are high yielding. However, private companies usually invest in
varieties that farmers cannot save from one harvest to the next118 or high-
productivity crops, rather than in crops that benefit all and are sustainable. More-
over, private companies are very much concentrated (“[a] third of the entire global
seed market is in the hands of just 10 corporations”119) and focus on the most
commercial varieties that are more vulnerable to variations in climate and other
inputs.120
Against this background, it is therefore important to enable farmers to play their
role in innovation. They would then be better equipped to preserve their informal
seed systems121 and protect their more unstable varieties (farmers develop crop
diversity through local landraces), which are not protected by UPOV because they
do not meet the uniformity requirements.122 Equally important is to preserve the
breeders’ exemption and the promotion of public research,123 which traditionally
has had a major role in plant breeding but is shrinking.124
115
FAO (2010), p. 8; Andersen and Winge (2013), pp. 7–8, 13–15.
116
Santilli (2012), p. 78.
117
Ibid.
118
FAO (2010), p. 7. See case Monsanto Roundup ready 1998. See also ten Kate and Laird (1999),
p. 126 mentioning the introduction of so-called genetic use restriction technologies.
119
23 July 2009, para 36.
120
Chiarolla (2011), pp. 61–64.
121
FAO (2010), p. 8.
122
UNDP (2008), p. 16.
123
See in this regard Sherman (2014), pp. 23 et seqq.
124
FAO (2010), p. 7. See also Sell (2009), pp. 212–213.
74 A.G. Micara
4 Trips-Plus vis-
a-vis Other International Norms
on the Access and Diversity of Plant Genetic Resources
To address the abovementioned drawbacks of TRIPs-plus provisions, the role of

other international instruments concerning PGRs needs to be examined. This is
because PGR protection is at the intersection of intellectual property, human rights,
environmental law, and other agreements. Unfortunately, it will be shown that the
CDB and the ITPGRFA do not offer effective safeguards; therefore, it will be
crucial to assess whether human rights could counterbalance these provisions.
First of all, an FTA arbitral panel could interpret the relevant provisions by
considering the VCTL rules125 and interpret relevant international provisions in a
mutually supportive way according to “the principle of harmonious interpretation
and systemic integration which operates as a presumption against conflict between
the relevant rules.”126 However, as shown, few provisions present enough space in
this regard, i.e. the ordre public exemption, and as extension of patent rights is
mainly a US phenomenon, the fact that the US is not bound to ICESCR or CBD
limits the role of interpretation to a great extent. Furthermore, there is little
litigation under FTAs,127 and, from a general perspective, this increase in judicial
forums does not seem to foster the coherence of interpretation in the field of PGR
and could undermine predictability. In fact, interpreting and implementing TRIPs,
CBD, and ITGPRFA in a mutually supportive and consistent manner seems more
difficult.
It therefore needs to be examined whether relevant TRIPs-plus provisions are in
conflict with other international obligations aimed at protecting access to genetic
resources and biodiversity.128 In addition to the “conflict” between TRIPs and
CBD, also restrictions on farmers’ rights (i.e., saving and exchanging seeds)
could be in conflict with the CBD, according to which parties shall “[p]rotect and
encourage customary use of biological resources in accordance with traditional
cultural practices that are compatible with conservation or sustainable use require-
ments” (art. 10(c)).129 Furthermore, low-quality patents, which are not really
distinct from basic genetic resources, could affect the sovereignty principle on
natural resources.130 However, there is no consensus that the relationship between
125
However “reference to economic, social and cultural rights in the WTO outside the area of
workers’ rights remain sparse” Hestermeyer (2014), p. 283.
126
Grosse Ruse-Khan (2016), p. 34. See also WTO panel report, EC- Measures Affecting the
Approval and Marketing of Biotech Products, WT/DS291/R, WT/DS292/, WT/DS293/R, para
7.69.
127
Vidigal (2015).
128
See art. 30 VCTL and on the notion of conflict see, among others, Seuba (2010), pp. 209 et
seqq.; Pauwelyn (2003).
129
UNDP (2008), p. 8.
130
Bonadio (2008), p. 242.
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TRIPs and the CBD is conflictual131 and de facto it is very unlikely to be found
within the WTO.132 This makes it even more unlikely that in the event of a dispute,
an FTA’ arbitral panel would consider TRIPs-plus provisions as violating CBD
provisions.
Although the ITGRPFA is a milestone regarding PGR protection, it does not
provide as well effective safeguards against the TRIPs-plus provisions. Indeed, the
plant treaty protects farmers’ rights and traditional knowledge, but it does not really
set international standards on this (given the lack of consensus on this matter133).
According to art. 9.2 of the Agreement, parties “should, as appropriate” and “in
accordance with their needs and priorities,” “take measures to protect and promote
farmers rights including: [t]he protection of traditional knowledge relevant to plant
genetic resources for food and agriculture” and other measures.134 However, the list
is merely illustrative so that members can take other measures, and certain mea-
sures need be more specific in order to be effective, i.e. those on traditional
knowledge. Moreover, implementation responsibility rests on national govern-
ments, which takes into account national needs but makes the wording of art.
9 weak.135
Also relevant are the ITPGRFA provisions concerning the sustainable use of
PGRFAs since parties “shall develop and maintain appropriate policy and legal
measures” that promote this sustainable use (art. 6.1). However, also in this case,
the wording is weak because art. 6.2 provides measures that, although significant,
“may” be included (i.e., pursue agricultural policies to enhance sustainable use of
agrobiodiversity, strengthening research to enhance and conserve biodiversity and
promoting breeding efforts of farmers).
In the autumn of 2015, the UN Agenda 2030 set a number of Sustainable
Development Goals, which provide that States should maintain “genetic diversity
of seeds, cultivated plants and farmed and domesticated animals and their related
wild species (. . .) as internationally agreed” (SDG 2.5) and “[p]romote fair and
equitable sharing of the benefits arising from the utilization of genetic resources and
promote appropriate access to such resources, as internationally agreed” (SDG
15.6).136 Although not legally binding, hopefully this will strengthen the imple-
mentation of the CBD and the ITPGRFA.
131
Ibid., p. 239.
132
Pires de Carvalho (2014), pp. 334 et seqq.
133
Santilli (2012), p. 209.
134
Other measures are “[t]he right to equitably participate in sharing benefits arising from the
utilization of plant genetic resources for food and agriculture; and – [t]he right to participate in
making decisions, at the national level, on matters related to the conservation and sustainable use
of plant genetic resources for food and agriculture” (art. 9.2). See Aoki (2008), pp. 86–90.
135
23 July 2009, para 43.
136
UN General Assembly Resolution, Transforming our world: the 2030 Agenda for Sustainable
Development, adopted on 25 September 2015, 70/1 21 October 2015, A/RES/70/1.
76 A.G. Micara
5 The Need to Strengthen the Human Rights Framework

to Better Protect Access to Seeds and Biological Diversity
Having seen that the CBD and ITPGRFA are not effective safeguards in
counterbalancing TRIPs-plus provisions, the role of human rights instruments
needs to be assessed. We will observe that there may be a conflict between these
provisions and the right to food and that the draft United Nations Declaration on the
Rights of Peasants and Other People Working in Rural Areas,137 aimed at
addressing poverty and hunger of people living in rural areas,138 includes access
to seeds and biological diversity under human rights law. Although economic and
social rights have traditionally been poorly “enforceable,” hopefully the enhance-
ment of the human rights framework will have an impact on the drafting of FTAs
and on the conclusion of other multilateral agreements in this field.
Access and the diversity of PGRFAs affect food security and therefore are
important to safeguard the right of everyone to adequate food.139 It has thus been
argued that “it would not be too difficult to construct an argument that the obliga-
tion to protect plant varieties might be inconsistent with a given nation’s need for
food security.”140 In fact, the Committee on Economic, Social and Cultural Rights
explicitly affirmed, with regard to Swiss FTAs, that “‘TRIPS-plus’ provisions
concerning accession to the International Convention for the Protection of New
Varieties of Plants increase food production costs, seriously undermining the
realization of the right to food.”141 According to the Rapporteur on the right to
food, measures “which create obstacles to the reliance of farmers on informal seed
systems may violate this obligation, since it would deprive farmers from a means of
achieving their livelihood.”142
However, while many FTAs provide for a dispute settlement chapter, so that
noncompliance with FTA provisions could involve retaliation, i.e. restrictions on
market access for developing countries, the ICESCR does not have an effective
enforcement provision to tackle violations and poor implementation.
The draft UN Declaration could provide new tools to balance the analyzed
TRIPs-plus provisions. The first draft of the Declaration was largely based on the
137
Declaration on the rights of peasants and other people working in rural areas, A/HRC/WG.15/1/
2, 20 June 2013.
138
Final study of the Human Rights Council Advisory Committee on the advancement of the rights
of peasants and other people working in rural areas, A/HRC/19/75, 2012, para 9.
139
On the right to food see, among others, Ziegler et al. (2011).
140
Blakeney (2009), p. 87.
141
Committee on Economic, Social and Cultural Rights, Consideration of reports submitted by
States parties under articles 16 and 17 of the Covenant, Concluding observations of the Committee
on Economic, Social andCultural Rights, Switzerland, E/C.12/CHE/CO/2-3, 26 November 2010,
para 24.
142
23 July 2009, para 4.
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Declaration of the Rights of Peasants—Men and Women adopted by La Via

Campesina (a worldwide movement of farm workers, along with peasant, farm,
and indigenous peoples’ organizations), after the global food crisis of 2008–2009,
and followed the structure of the UN Declaration on the rights of Indigenous People
(UNDRIP).143 However, a new draft (the “advanced version”144), which is different
both in terms of structure and language,145 has been proposed by Ambassador
Navarro Llanos, Chairperson Rapporteur of the open-ended intergovernmental
working group established in 2012 by the Human Rights Council to negotiate the
declaration.146 If adopted, the Declaration would reaffirm the civil, political, eco-
nomic, and social rights of peasants, as already affirmed in certain human rights
instruments, and would also create new rights from the human rights perspective,
such as the right to seeds and traditional agricultural knowledge and practice, the
right to biological diversity, and the right to food sovereignty.
The right to food sovereignty is a concept developed by Via Campesina “to
counterpose the dominant ‘market economy’ paradigm.”147 According to art. 5.4 of
the advanced version, “[f]ood sovereignty is the right of peoples to healthy and
culturally appropriate food produced through socially just and ecologically sensi-
tive methods. It entails peoples’ right to participate in decision-making, and to
define their own food and agriculture systems.” This is still a controversial con-
cept,148 and it is difficult to argue that it allows farmers to use patented varieties. At
the same time, it is important to consider farmers’ participation in decision mak-
ing,149 which is already present in ITGRPFA but poorly implemented.
Recognizing the “enormous contributions to the conservation and development
of plant genetic resources, which constitute the basis of food and agricultural
production throughout the world” (art. 22.1 advanced version), the draft Declara-
tion provides that peasants have the “right to save, store, transport, exchange,
donate, sell, use and re-use farm-saved seeds, crops and propagating material”
(art. 22.3). Also, “States should respect, protect and promote peasant seed systems,
and recognize the validity of peasants’ seed certification systems” (art. 22.5), and
143
UN Doc. A/RES/61/295.
144
Advanced version of the new text of draft declaration, available at http://www.ohchr.org/EN/
HRBodies/HRC/RuralAreas/Pages/2ndSession.aspx.
145
Golay (2015), p. 3.
146
For more comprehensive comment on all provisions of the Declaration see, among others,
Golay (2015), pp. 7 et seqq.; Report of the open-ended intergovernmental working group on a draft
United Nations declaration on the rights of peasants and other people working in rural areas,
A/HRC/26/48, 11 March 2014.
147
Claeys (2014), p. 30.
148
Advanced version of the new text of draft declaration, para 40, available at http://www.ohchr.
org/EN/HRBodies/HRC/RuralAreas/Pages/2ndSession.aspx.
149
In this regard Andersen, Winge (2013), p. 60. Moreover, “States shall obtain free, prior and
informed consent of peasants” when developing and implementing legislation and international
agreements concerning them (art. 2.4 advanced version).
78 A.G. Micara
this should facilitate the possibility to exchange and sell farmers’ seeds.150 Com-
pared to the previous version, art. 22.3 on the right to seeds is broader because it
provides more than developing, exchanging, and selling seeds,151 but “the right to
reject varieties of plants which they consider to be dangerous economically,
ecologically and culturally”152 is no longer present. Indeed, the right to reject was
not based on an agreed language153 and was criticized by many States, and all
references to it were cut in the advanced version.
Peasants would also have “the right to conserve, maintain and develop agricul-
tural biodiversity, and their right to associated knowledge, including in crops and
animal races” (art. 23.2), which includes again the “right to save, exchange, sell or
give away the seeds, plants and animal breeds they develop” (art. 23.2). The right to
biological diversity is particularly significant from our perspective because it
directly refers to certain relevant links with IP providing that “States shall ensure
that peasants’ seeds and livestock systems are protected from genetic contamina-
tion, biopiracy and theft” (art. 23.3); peasants “have the right to exclude from
intellectual property rights genetic resources, agricultural biological diversity and
associated knowledge and technologies that are owned, discovered or developed by
their own communities” (art. 23.4). These rights are significant, although the
definition of biopiracy and the proactive measures needed to tackle the problem
are lacking. The previous version was narrower but included the “right to reject
patents threatening biological diversity, including on plants, food and medicine”
(art. 10.2), and it used stronger language.
Finally, and related to the aforementioned provisions on biopiracy, there are
several provisions regarding traditional knowledge. On the one hand, “States
should take measures to respect, protect and promote traditional knowledge rele-
vant to plant genetic resources” (art. 22.4). On the other, peasants have “the right to
maintain, control, protect and develop their cultural or traditional knowledge,
including their technologies, genetic resources, seeds and medicines” (art. 29.2),
and “the right to be protected from measures threatening biological diversity and
traditional knowledge, including forms of intellectual property that might adversely
affect their traditional knowledge and use of genetic resources” (art. 23.7). How-
ever, the wording remains weak, as in the ITPGRFA and UNDRIP. To really
protect traditional knowledge (and prevent biopiracy), active measures are needed
such as those included in the WIPO IGC draft instruments.154
150
See also art. 23.5: Peasants and other people working in rural areas have the right not to accept
certification mechanisms established by transnational corporations. They have the right to use
certification mechanisms established or adopted by their governments. Guarantee schemes run by
peasants’ organisations with government support should be promoted and protected.
151
Declaration on the rights of peasants and other people working in rural areas, A/HRC/WG.15/1/
2, 20 June 2013, art. 5.8.
152
Ibid., art. 5.2.
153
Golay (2015), p. 25.
154
See Consolidated Document Relating to Intellectual Property and Genetic Resources, WIPO/
GRTKF/IC/29/4, 30 November 2015.
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In conclusion, the wording of the Declaration is important, especially

concerning farmers’ rights, although it is still weak regarding other relevant aspects
of the relationship between IP and the right to food and biodiversity, concerning
access to PGRs and the promotion of research on plants. However, the need for a
new instrument is still controversial,155 as well as many aspects of the draft,156 so
that it is difficult to predict what the final version of the text will be.
Declarations adopted by the UN General Assembly are not binding but are
authoritative instruments that could be considered as evidence of the opinio iuris
of States, therefore contributing to the creation of international customary rules.
Nevertheless, the Declaration would represent a strong political signal and could
have an impact on FTAs, considering that the EU, EFTA and other countries
usually made reference to indigenous rights after the adoption of UNDRIP or to
the right to health in the IP chapter of their FTAs after the adoption of the Doha
Declaration on the TRIPs Agreement and Public Health.157 Moreover, the human
rights nature of the right to seed and right to biological diversity could have an
impact on US FTAs.
The draft Declaration could also foster multilateral instruments, much needed in
the field of PGRs, which could also positively affect the coherence of governance,
which suffers from fragmentation and poor coordination, i.e. between WTO and
ITPGRFA and FTAs. Since “domesticated plant genetic resources should be treated
as a common pool, rather than as ‘property’ of any particular State or local
community,”158 the ITPGRFA multilateral system, which is the first innovative
solution consisting in a common pool of genetic material available for research and
breeding, should be enhanced.159 In addition, the Declaration could have an impact
on the works of WIPO IGC, also considering that the stronger participation and
representation of small-scale farmers would be necessary in order to strengthen the
effectiveness of genetic resource provisions, which are still controversial.160
155
Report of the open-ended intergovernmental working group on a draft United Nations decla-
ration on the rights of peasants and other people working in rural areas, A/HRC/26/48, 11 March
2014, paras 28–29.
156
Ibid., para 34 et seqq.
157
Doha Ministerial Declaration on the TRIPs Agreement and Public Health, WT/MIN(01)/DEC/
W/2, 14 November 2001. See also Report of the Special Rapporteur on the right to food,
Addendum, Guiding principles on human rights impact assessments of trade and investment
agreements, UN Doc. A/HRC/19/59/Add.5, 19 December 2011.
158
23 July 2009, p. 8.
159
Vezzani (2013), pp. 454–456. See also proposal on open source licensing for seeds in Aoki
(2008), pp. 99 et seqq.
160
Bragdon and Finnegan (2013).
80 A.G. Micara
TRIPs-plus agreements are spreading and are narrowing the access and diversity of
PGRFAs, which are key features for tackling food security, climate change, and
biodiversity. Most FTAs provide for accession to the UPOV Convention 1991,
which established an intellectual property system tailored to protect plant varieties.
Its latest version offers greater protection to breeders but is more restrictive
concerning research and farmer exemptions. The extension of the patentability to
plants, although circumscribed to US agreements, and the parallel extension of
patent exclusive rights through narrower exceptions have had an even more restric-
tive impact on the access and diversity of PGRFAs. In addition, TRIPs-plus pro-
visions are “global” in nature.
Against this background, countries rich in genetic resources have obtained
mainly programmatic provisions on the protection of biodiversity and traditional
knowledge. Furthermore, existing international instruments on PGR protection are
not effectively counterbalancing the TRIPs-plus phenomenon. Unfortunately, the
CBD and ITPGRFA are not effective safeguards, although hopefully the UN
Agenda 2030 will strengthen their implementation. However, the human rights
nature of the right to seeds and of the right to biological diversity for peasants (if the
draft Declaration on the Rights of Peasants and Other People Working in Rural
Areas is adopted maintaining this wording) may have a significant impact on the
intellectual property chapter of FTAs and, hopefully, may help foster a more
balanced system.
References
Aleman M (2014) Impact of TRIPS-plus obligations in economic partnership-and free trade

agreements on international IP law. In: Drexl J et al (eds) EU bilateral trade agreements and
intellectual property: for better or worse? Springer, Heidelberg, pp 61–85
Andersen R, Winge T (eds) (2013) Realising farmers’ rights to crop genetic resources success
stories and best practices. Routledge, Abingdon
Antons C (2016) Article 27(3)(b) TRIPS and plant variety protection in developing countries. In:
Ullrich H et al (eds) TRIPs plus 20. Springer, Heidelberg, pp 389–414
Aoki K (2008) Seed wars: controversies and cases on plant genetic resources and intellectual
property. Carolina Academic Press, Durham
Blakeney M (2009) Intellectual property rights and food security. CABI, Wallingford and
Cambridge
Bonadio E (2008) Sistema brevettuale ‘TRIPS’ e risorse genetiche: esigenze commerciali e
interessi pubblici. Jovene, Naples
Bragdon S, Finnegan L (2013) Genetic resources and traditional knowledge: getting the rules right
for agriculture: a key challenge for WIPO’s IGC. http://www.ip-watch.org/2013/02/01/
genetic-resources-and-traditional-knowledge-getting-the-rules-right-for-agriculture-a-key-
challenge-for-wipos-igc. Accessed 30 Sept 2016
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Chamas C et al (2010) Intellectual property and medicine: towards global health equity. In:
Wong T, Dutfield G (eds) Intellectual property and human development. Cambridge University
Press, Cambridge, pp 60–102
Chiarolla C (2011) Intellectual property, agriculture and global food security: the privatization of
crop diversity. Edward Elgar, London
Claeys P (2014) Vı́a Campesina’s struggle for the right to food sovereignty: from above or from
below? In: Lambek NCS et al (eds) Rethinking food systems, structural challenges, new
strategies and the law. Springer, Dordrecht, pp 29–52
Correa C (2010) Data exclusivity for pharmaceuticals: TRIPS standards and industry’s demands in
free trade agreements. In: Correa C (ed) Research handbook on the protection of intellectual
property under WTO rules. Edward Elgar, Cheltenham and Northampton
Deere C (2009) The implementation game, the TRIPS agreement and the global politics of
intellectual property reform in developing countries. Oxford University Press, Oxford
FAO (1997) First report on the state of the world’s plant genetic resources for food and agriculture.
FAO, Rome
FAO (2010) The second report on the state of the world’s plant genetic resources for food and
agriculture, synthetic account. FAO, Rome
FAO (2016) The state of food and agriculture, climate change, agriculture and food security. FAO,
Rome
FAO, IFAD, WFP (2015) The state of food insecurity in the world 2015. In: Meeting the 2015
international hunger targets: taking stock of uneven progress. FAO, Rome
Golay C (2015) Negotiation of a United Nations declaration on the rights of peasants and other
people working in rural areas. Geneva Academy, Geneva
Haugen HM (2014) The right to food, farmers’ rights and intellectual property rights: can
competing law be reconciled? In: Lambek NCS et al (eds) Rethinking food systems, structural
challenges, new strategies and the law. Springer, Dordrecht, pp 195–218
Helfer L (2004) Intellectual property rights in plant varieties, international legal regimes and
policy options for national governments. FAO, Rome. http://www.fao.org/3/a-y5714e.pdf.
Accessed 30 Sept 2016
Hestermeyer HP (2014) Economic, social, and cultural rights in the World Trade Organization. In:
Riedel E et al (eds) Economic, social and cultural rights in international law. Oxford University
Press, Oxford, pp 260–285
Kampf R (2007) TRIPs and FTAs: a world of preferential or detrimental relations? In: Heath C,
Sanders AK (eds) Intellectual property and free trade agreements. Hart Publishing, Portland
Kur A (2016) From minimum standards to maximum rules. In: Ullrich H et al (eds) TRIPs plus 20.
Springer, Heidelberg, pp 133–162
Kur A, Levin M (eds) (2011) Intellectual property rights in a fair world system, proposals for
reform of TRIPs. Edward Elgar, Cheltenham and Northampton
Malbon J et al (2014) The WTO agreement on trade-related aspects of intellectual property rights,
a commentary. Edward Elgar, Cheltenham and Northampton
Metzger A (2016) Patents on tomatoes and broccoli: legal positivists at work. Int Rev Intellect
Prop Compet Law 47(5):515–516
Nadde-Phlix S (2014) IP protection in EU free trade agreements vis-a-vis IP negotiations in the
WTO. In: Drexl et al (eds) EU bilateral trade agreements and intellectual property: for better or
worse? Springer, Heidelberg, pp 133–156
Pauwelyn J (2003) Conflict of norms in public international law: how WTO law relates to other
rules of international law. Cambridge University Press, Cambridge
Pires de Carvalho N (2014) The TRIPs regime of patents and test data, 4th edn. Kluwer Law
International, Alphen aan den Rijn
Prifti V (2015) The Breeder’s exception to patent rights analysis of compliance with Article 30 of
the TRIPS Agreement. Springer, Heidelberg
Ranjan P (2007) Bilateralism, MFN and TRIPS: exploring possibilities of alternative interpreta-
tion. Int Trade Law Regul 13(4):67–78
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Ruse-Khan G (2016) The protection of intellectual property in international law. Oxford Univer-
sity Press, Oxford
Sanderson J (2017) Plants, people and practices, the nature and history of the UPOV convention.
Cambridge University Press, Cambridge
Santilli J (2012) Agrobiodiversity and the law, regulating genetic resources, food security and
cultural diversity. Routledge, Abingdon
Sell SK (2009) Corporations, seeds, and intellectual property rights governance. In: Clapp J, Fuchs
D (eds) Corporate power in global agrifood governance. MIT Press, Cambridge and London,
pp 187–224
Seuba X (2010) Mainstreaming the TRIPS and human rights interactions. In: Correa CM
(ed) Research handbook on the protection of intellectual property under WTO rules. Edward
Elgar, Cheltenham and Northampton, pp 192–215
Sherman B (2014) Reconceptualizing intellectual property to promote food security. In:
Lawson C, Sanderson J (eds) The intellectual property and food project, from rewarding
innovation and creation to feeding the world. Ashgate, Farnham, pp 23–38
ten Kate K, Laird SA (1999) The commercial use of biodiversity, access to genetic resources and
benefit-sharing. Earthscan, London
UNCTAD-ICTSD (2005) Resource book on TRIPS and development. Cambridge University
Press, New York
UNDP (2008) Towards a balanced ‘sui generis’ plant variety regime: guidelines to establish a national
PVP law and understanding of TRIPS-plus aspects of plant rights. UNDP. http://www.undp.org/
content/dam/aplaws/publication/en/publications/poverty-reduction/poverty-website/toward-a-bal
anced-sui-generis-plant-variety-regime/TowardaBalancedSuiGenerisPlantVarietyRegime.pdf.
Vezzani S (2013) Le risorse fitogenetiche per l’alimentazione e l’agricoltura nel dibattito sui
“global commons”. Riv Crit Dir Priv 3:433–464
Vidigal G (2015) Why is there so little litigation under preferential trade agreements? Retaliation
and adjudication in international dispute settlement. http://ssrn.com/abstract¼2634910.
Accessed 15 Jul 2016
Vivas-Eugui D (2012) Bridging the gap on intellectual property and genetic resources in WIPO’s
Intergovernmental Committee. ICTSD issue paper n. 34. http://www.ictsd.org/downloads/
2012/02/bridging-the-gap-on-intellectual-property-and-genetic-resources-in-wipos-intergov
ernmental-committee-igc.pdf. Accessed 30 Sept 2016
Vivas-Eugui D, Oliva MJ (2010) Biodiversity related intellectual property provisions in free trade
agreements, issue paper 4. ICTSD project on genetic resources, natural resources, international
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World Bank (2006) Intellectual property rights, designing regimes to support plant breeding in
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528331468328595898/pdf/355170PAPER0In1ver0p09400401PUBLIC1.pdf. Accessed
30 Sept 2016
Xiong P (2012) An international law perspective on the protection of human rights in the TRIPs
agreement. Brill, Leiden
Ziegler J et al (2011) The fight for the right to food lessons learned. Palgrave Macmillan,
Basingstoke
www.ebook3000.com
Results-Based Agri-Environmental Schemes
for Delivering Ecosystem Services in the EU:
Established Issues and Emerging Trends
Andrea Saba
1 Introduction
Think of your last lunch.1 Perhaps it was a good one. Just before you bite your
sandwich (or perhaps pasta, if you were in Italy), you may have appreciated the care
of the kitchen staff in mixing the right quantity of fresh ingredients. If you were
particularly sensitive, you might even have been grateful to the farmer who grew
lettuce and tomatoes. But how many of us have ever thought much regarding the
soil and water quality needed for breeding the pork or growing your lettuce or even
the pollinators that fertilise the blossom of your fruit so that it can set? Perhaps no
one. As for many goods and services we benefit, we are used to taking for granted
the benefits received from nature until we suffer the impact of their losses, or our
refrigerator gets empty.
The chapter is devoted to increasing the legal understanding of results-based
contracting as an emerging legal mechanism for promoting ecosystem benefits in
Europe. Under such a mechanism, farmers are rewarded not for performing
activity-based standards but for achieving set environmental outcomes. In recent
years, results-based schemes are slowly increasing in number and scope, while the
majority remains located in northwestern Europe. Even if there is an increasing
interest towards results-based approach, a significant gap exists in literature. The
current state of art is still dominated by grey literature and research report deliver-
ables. The present work is based on both the existing academic literature and the
experience accumulated through case-study learning in Europe. The selected cases
are in different stages of development—from trial and pilot schemes to mainstream
1
This brief story-telling is built on the introductive thoughts in Salzman (2005). In this case,
imitation is the sincerest expression of flattering.
A. Saba (*)
e-mail: andrea.saba@santannapisa.it

84 A. Saba
measures carried out for a number of years—and of different scope—from local to

large regional scale. It is worth mentioning that some cases (e.g., cooperative
mechanisms) are not results-based schemes; however, they have been included
with the aim of providing a description of the implementing issues associated with
such mechanisms.
The chapter is divided into three sections. The first section analyses the concept
of ecosystem services from its origin to the more recent understanding through a
social and ecological systematic approach. It also discusses the concept of payment
for ecosystem services and its role in the EU Common Agricultural Policy. The
second section examines the legal understanding of results-based contracting by
identifying established and emerging issues related to its design and implementa-
tion. This leads the discussion, in the third section, to the analysis of a supportive
governance for better implementing such a new results-based instrument.
2 Paying for Ecosystem Services Within Agri-

Environmental Schemes and Contracts in the EU
2.1 Agriculture and Ecosystem Services
Research on the value of benefits we receive from nature is not new.2 Their
recognition traces its origins back for several decades in the literature.3 However,
the term ‘ecosystem service’ was first coined only in the late 1960s.4 The concept
emerged in describing the relevance and value of natural systems to human society,
including both the ecological, hydrological and chemical functions in the environ-
ment and the benefits derived from the combined effect of cultural and natural
process.5 It definitely is a human-centred concept.6 Nowadays, the research around
ecosystem services is increasingly evolving by shifting from the original ecological
and pedagogical perspective where the aim was to draw attention on our depen-
2
Gretchen Daily emphasised that a first cognizance dates at least back to Plato that wrote about the
services of soil retention more than 2500 years ago. See Daily (1997).
3
A first articulation of the concept of ecosystem services can be found in the idea of land ethic
elaborated by Aldo Leopold in 1949. See Leopold (1949).
4
A series of paper started to discuss how ‘functions of nature’ serve human society. See, among
others, King (1966), Helliwell (1969), and Westman (1977). However, the term was only coined in
1981 by Ehrlich and Ehrlich that capitalised on the previous literature. See Ehrlich and Ehrlich
(1981). For a general overview of the historical elaboration of the concept, see Gómez-Baggethun
et al. (2010).
5
See Ehrlich et al. (1977) and Ehrlich and Mooney (1983). On the linkage between ecosystem
services and environmental services, see, inter alia, Pesche et al. (2013).
6
See Sagoff (2002) and Schroter et al. (2014). See also Boyd and Banzhaf (2007).
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Results-Based Agri-Environmental Schemes for Delivering Ecosystem Services. . . 85
dence upon ecological systems to an inclusion of economic, legal and institutional

elements in order to influence public policy.7 Beyond the economic debate,8 the
concept of ecosystem services appears increasingly mentioned in legal scholar-
ships, even if it has not found its way in the legal literature at the same rate as into
other disciplines in which it is already being widely debated.9 Along this pathway,
the concept is still developing with a relatively fast-moving legal literature that is
discussing the best way to characterise ecosystem services.10
Conventionally, ecosystem services have been recognised in their relevance for
public policy with the publication of the Millennium Ecosystem Assessment
(hereafter, MEA) in 2005.11 The different perspectives existing in the academic
literature have been mainstreamed in an articulated definition. According to MEA,
an ecosystem is ‘a dynamic complex of plant, animal, and microorganism commu-
nities and the non-living environment interacting as a functional unit’.12 Human
beings are not excluded from ecosystems but considered as an integral part of them.
From this perspective, ecosystem services are ‘the benefits people directly or
indirectly obtain from the environment’.13 Ecosystem services were classified
into four broad categories: provisioning, regulating, supporting and cultural ser-
7
See Vihervaara et al. (2010). For example, see the EU research project ‘Pegasus. Public Ecosys-
tem Goods and Services from land management – Unlocking the Synergies’. The project received
funding from the European Union’s Horizon 2020 research and innovation programme under grant
agreement No 633814, for the period March 2015–February 2018. See Dwyer et al. (2015).
8
For a comprehensive overview of the economic debate on ecosystem service, see Farley (2012);
Kumar (2010) and Gómez-Baggethun et al. (2010). See also Jones et al. (2016).
9
In the past several scholars have pointed out the need for foundational work in this field,
particularly in the American legal literature. See, for example, Kysar (2001), Ruhl (1998), and
Salzman (1997). See, also, Ruhl and Salzman (2007), p. 22; Tarlock (2014). For the European
context, see the recent publication by Kistenkas (2014).
10
Among others, this fast-moving debate is shown by the very recent call for contributions for the
Special Issue on Legal Aspects of Ecosystem Services, promoted by the academic journal
Ecosystem Services published by Elsevier. The Special issue, first of its kind, is intended to fill
the gap in the academic legal literature that shows a relevant lag in embracing the concept of
ecosystem services. See Mauerhofer and Kistenkas (2015). See, also, Costanza and
Kubiszewski (2012).
11
The Millenium Ecosystem Assessment [hereafter, MEA] was set up by the UN Secretary-
General Kofi Annan in 2000. The MEA involved a wide range of stakeholders, include the private
sectors, NGOs and academics to provide an integrated assessment of the consequences of
ecosystem change for human well-being and to explore the available options for conserving
ecosystems. The findings are contained in five technical volumes and six synthesis reports. For
access the materials, see the MEA website at http://www.millenniumassessment.org/en/Index-2.
html. Accessed 4 July 2015.
12
See Hassan et al. (2005), p. 27.
13
See Hassan et al. (2005), p. 27.
86 A. Saba
vices.14 While MEA has had the great merit of mainstreaming the concept of
ecosystem services, it was the subject of several critics that pointed out shortcom-
ings in its categorisation.15 In this vein, several other classifications have been
developed, but all remain based on the conceptual organisation of MAE.16
The linkage between agriculture and environment is complex and widely
debated in scholarships.17 Agriculture is undoubtedly considered the major form
of land management in the world where agricultural ecosystems are covering
almost 40% of the terrestrial surface of the Earth.18 Agricultural ecosystems are
both providers and beneficiaries of ecosystem services.19 While traditionally agri-
cultural ecosystems have been recognised as a source of provisioning services (e.g.,
food, fibre, forage, biomass), an increasing attention is paid to their contribution in
delivering other services.20 Public agencies have recognised the need for action in
protecting and enhancing the delivery of ecosystem services.21 The production of
14
Provisioning services are the products that we obtain from ecosystems, such as food, fibre, fresh
water and genetic resources. While, air quality maintenance, climate regulation, water purification
are some of the services that we receive from the regulation of ecosystem processes, thus defined
as regulating services. Conversely, the services that are essential for the production of all other ES
are called supporting services. These may include primary production and soil formation. The last
category of cultural services encompasses the non-material benefits that we obtain from ecosys-
tems ‘through spiritual enrichment, cognitive development, reflection, recreation, and aesthetic
experiences’. See Hassan et al. (2005), p. 29.
15
For a comprehensive analysis, see Lele et al. (2013), Fisher et al. (2009), and Schroter
et al. (2014).
16
See, inter alia, Costanza (2008), Fisher et al. (2009), TEEB (2010), Wallace (2007), and Haines-
Young and Potschin (2010, 2011).
17
In this regard, the contribution of the Italian legal doctrine is fascinating. The environment is
understood in threefold perspective in regard of the agriculture: (1) as a limit in the exercise of
agricultural activities, (2) as form of agriculture in terms of environmental constraints on the agri-
forestry land, and (3) as a product shaped by agricultural activities with regard to the services
provided. See Francario (1988).
18
See FAO Statistics, available online at www.faostat.fao.org. Accessed 4 July 2015.
19
It is essential, however, to not underestimate the potential for management to deliver agricultural
‘disservices’, including loss of biodiversity habitat, nutrient runoff, water sedimentation and
hypertrophication, and pesticide pollution. See Power (2010). For a comprehensive ecological
overview, see, among others, Zhang (2007). See also Balvanera et al. (2016).
20
See Hassan et al. (2005), p. 27. Through a well-balanced management, agro-ecosystem pro-
cesses may provide (1) supporting services, such as soil quality regulation, pest control, pollination
and genetic diversity needed for future agricultural use; (2) regulating services, including water
quality control, climate regulation and carbon storage, flood control; and (3) cultural services, that
is scenic beauty, education and recreation. See Power (2010). See also Pardy (2003).
21
At an international level, one of the major points of reference is in the Convention of Biological
Diversity that, in 1992, first acknowledged the value of conservation practices in maintaining
ecosystem services. It addressed the challenge of developing an ecosystem approach towards
natural resources management. See Convention on Biological Diversity [1992] 1760 UNTS 79.
See, also, Conference of the Parties to the Convention on Biological Diversity, Decision V/6 on the
ecosystem approach, principle 5; and Decision VII/11, adopted in 2004, on the ecosystem
approach. According to the literature, the Convention attempted to reach an optimum between
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ecosystem services from agricultural land was acknowledged by the concept of

multifunctional agriculture.22 The multifunctional role of agriculture—i.e., produc-
ing both market goods (e.g., food and timber) and goods and services of public
interest (i.e., ecosystem services)—was substantially promoted by the European
Union, denoting the so-called European model of agriculture.23 This resulted in a
large EU support in incentivising the farms to perform a number of functions
without compromising the primary scope of agricultural production. Two
approaches to multifunctional agriculture are recognised in literature: a positive
approach and a normative approach.24 The positive approach is emblematically
defined by the Organisation for Economic Co-operation and Development
(OECD).25 This perspective understands ecosystem services as a joint output of
activities, in particular ‘the term multifunctionality refers to this nexus between
commodity and non-commodity output production in agriculture’.26 On the other
side, the normative approach focuses on the multifunctional role of agriculture as a
societal objective, i.e. the public interest towards the multiple functions of agricul-
ture.27 Thus, this approach calls for a territorially embedded role of agriculture that
is more linked to rural areas rather than to the agriculture sector. With this in mind,
the functions of agriculture become ‘the factual or potential provision of material or
immaterial goods and services that satisfy social expectations, meeting societal
ecological principle and social economic reasons. For an analysis of the Convention, see, ex multis,
Morgera (2015), Morgera (2016), de Lucia (2015), Voigt (2013), Daniel et al. (2014), and
Postiglione (1999). More recently, this resulted in the adoption of the Strategic Plan for Biodiver-
sity 2011–2020, where the Parties to the Convention agreed ‘to take effective action to halt the loss
of biodiversity in order to ensure that by 2020 ecosystems are resilient and continue to provide
essential services, thereby securing the planet’s variety of life, and contributing to human well-
being, and poverty eradication’. Specifically, they adopted the Aichi Biodiversity Targets that
includes a number of targets for agricultural ecosystems. See Conference of the Parties to the
Convention on Biological Diversity, Decision X/2: ‘The Strategic Plan for Biodiversity
2011–2020 and the Aichi Biodiversity Targets’, adopted in October 2010, para 12. As a party to
the Convention of Biological Diversity, the European Union has considered ecosystem services
protection as a central point of its biodiversity strategy for the period up to 2020. Its focal target is
‘halting the loss of biodiversity and the degradation of ecosystem services in the EU by 2020 and
restoring them in so far as possible, while stepping up the EU contribution to averting global
biodiversity loss’. See European Commission (2013) and Cooper et al. (2009). For a general
overview, see the recent contribution of Platjouw (2016) in which she analyses the legal develop-
ment of the ecosystem approach in EU. See, in more general terms, Platjouw (2013) and Dickson
and Edwards (2004).
22
For a comprehensive overview of the concept of multifunctional agriculture, see Cardwell
(2004) and Albisinni (2000). See, also, Buia and Antonucci (2015).
23
See, in particular, Cardwell (2004).
24
See Van Huylenbroeck et al. (2007). This research is also considered in Vanni (2014).
25
According to OECD, ‘the existence of multiple commodity and non-commodity outputs that are
jointly produced by agriculture and the fact that some of the non-commodity outputs exhibit the
characteristics of externalities or public goods, with the result that markets for these goods do not
exist or function poorly’. See OECD (2001), p. 13.
26
See OECD (2008), p. 7.
27
See OECD (2008), p. 6.
88 A. Saba
demand/needs through the structure of the agricultural sector’.28 Through this

definition, it emerges the relevance of the role that the public interest plays, by
including the interests of citizens in protecting the ecosystem service delivery.29
The main distinction between the two perspectives is seen in the different under-
standing of services and disservices produced by agriculture. On one side, the
positive approach understands disservices and services as ‘good’ and ‘bad’ outputs
respectively and treats them equally; on the other side, the normative definition
focuses on the benefits we receive from agricultural activities.30
However, a third interpretation is recently emerged. This attempts to understand
the concept of multifunctionality in a wider perspective, as the result of a transfor-
mation process in the linkage among agriculture, rural areas and society at large.31
The multifunctional agriculture is, therefore, the result of the evolving needs and
demands of society,32 in combination with ongoing changes in the farm develop-
ment model.33 Within this framework, it is possible to place the development of the
paradigm of ‘social-ecological systems’, which allows both social and ecological
elements of ecosystems to be conceptualised together.34 This paradigm focuses on
the close interdependencies between natural and man-made factors and processes.35
Four key principles are defined as follow: (1) the social systems are embedded in,
and interlocked with, the ecological systems; (2) social-ecological systems are
complex adaptive systems that (3) are subject to changes in unpredictable,
non-liner and transformative ways; however, (4) social-ecological systems have
varying degrees of resilience, and biological, physical and socio-economic factors
can influence this resilience.36 The literature shows that this allows the research to
move more easily from theory into practice, by better understanding the functional
28
This definition was first adopted in Barkmann et al. (2004). Among others, the definition was
cited in Casini et al. (2004), Van Huylenbroeck et al. (2007), and Vanni (2014).
29
See Vanni (2014), p. 6.
30
See Van Huylenbroeck et al. (2007), pp. 10 et seqq.
31
See Van Huylenbroeck and Durand (2003) and Wilson (2008).
32
See Vanni (2014), p. 7.
33
Along this perspective it is possible to locate a number of new farming approaches that are
acquiring increasing policy relevance and attracting the interests of academia. Among others, it is
worthwhile to mention the sustainable intensification of crop production and smart climate
agriculture. Regarding the sustainable intensification, see, among others, FAO (2011, 2013a, b),
Campbell et al. (2014), Garnett and Godfray (2012), Godfray (2015), and Godfray and Garnett
(2014). Regarding climate-smart agriculture, see, among others, FAO (2013a, b) and Adler (2013).
34
See, inter alia, Berkes et al. (2002) and McGinnis and Ostrom (2014).
35
See McGinnis and Ostrom (2014). Compare, mutatis mutandis, with the critics contained in the
recent contribution by Oto Hospes, according to him the current the concept of agroecosystems
neglects ‘the role of legal orders and social fields in defining benefits, services, values’. Moreover,
the concept shows to be ‘reductionistic in leaving out the interconnectedness between
agroecosystems and plural legal orders [...]’. See Hospes (2015), pp. 47 et seqq.
36
This four key principle were applied in CGIAR’s Water, Land and Ecosystems (WLE)
programme, by building on the research carried out by Walker and Salt. See CGIAR Research
Program on Water, Land and Ecosystems (2014) and Walker and Salt (2006).
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and institutional factors that influence ecosystem service delivery. Additionally, it

has the major merit to embrace different disciplines within a coherent framework of
analysis, such as ecology, economics, sociology, law and politics.37 However, this
framework is still subject to an ongoing development and has been rarely applied in
the policy and legal research.38 The legal scholarship needs to catch up with the
other disciplines in dealing with ecosystem services, by noting down all the insights
that are put forward. The law is dependent upon other disciplines to inform effective
decisions about the appropriate contractual and institutional instruments to use.39 In
this vein, a new approach is increasingly called for within academia and public
agency.40 Different scholars are maintaining that a reform of the law should be
based on the concept of resilience.41 New legal and institutional arrangements are,
therefore, increasingly considered crucial in order to achieve important results
concerning the governance of the social-ecological systems.
2.2 Paying for Ecosystem Services in Europe
Academia and policy makers are paying an increasing interest towards payment for
ecosystem services (hereafter, PES).42 The fundamental idea, in economic terms, is
37
See Fischer et al. (2015), p. 146. See, also, McGinnis and Ostrom (2014) and Heemskerk
et al. (2003).
38
Notwithstanding the essential role played by ecosystems in providing vital benefits to people, the
law encounters several challenges in protecting and enhancing them. According to James Salzman,
these factors may be articulated in three main reasons: ignorance, institutions and immature market.
The first aspect is not only linked to the fact that people take ecosystem services for granted—thus,
ignoring the source of the services we depend on—but also in acknowledging that the practices we
use are causing degradation in the provision of ecosystem services. The institutional obstacle
consists in the misalignment of the political jurisdictions with ecologically significant areas,
which may translate in the separation of costs and benefits derived from ecosystem services across
different jurisdiction. This might be the case of different perspective among upstream and down-
stream political stakeholders in considering the value of upstream forest conservation relating to
water quality. The third obstacle, identified by Salzman, concerns the ‘immature mature’ for
ecosystem services, despite their value for the general welfare. Ignorance and the obstacle to the
creation of the market are closing related factors in the Salzman’s view. See Salzman (2005).
Compare with Kochan (2015), and, mutatis mutandis, Noe and Alrøe (2015), pp. 31 et seqq.
39
See Ruhl et al. (2007), p. 13.
40
See Garmestani and Benson (2013), Garmestani et al. (2013). Compare with the interesting
perspective of ‘Agroecological Law’ contained in Monteduro (2015), pp. 57 et seqq. See, also, the
systematic literature review of adaptive governance scholarship for the period 2005–2014 in
Karpouzogloua et al. (2016).
41
The American legal literature is a pioneer within this debate. See, among others, Garmestani and
Allen (2014), Garmestani et al. (2013), Arnold and Gunderson (2013), Humby (2014), and
Ruhl (2011).
42
PES is only one of the instruments among which public authority can choose in designing public
policy aimed to ecosystem services protection. In most of the case, a policy mix is, however,
operated. James Salzman emblematically describes a toolkit of five basic strategies, called ‘Five
P’s’. The toolkit consists in Prescription, Penalty, Persuasion, Property rights, and Payment. See
Salzman (2005).
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that whoever provides ecosystem services is remunerated accordingly, thus trans-

lating external and non-market value into incentives for local actors to provide
ecosystem services.43 In fact, the PES concept is built upon the beneficiary-pays
principle.44 Despite this interest, the literature is still developing with few well-
documented PES schemes.45 Moreover, the rapid proliferation of PES schemes in
the real world has extended the term to include various purposes.46 It results to PES
tending to be a catch phrase, thus virtually including a wide range of economic and
legal incentives for promoting ecosystem protection. Indeed, existing PES schemes
rarely comply with the conditions elaborated in the literature.47 Some commenta-
tors agree to maintain that research aimed at identifying the characteristics of a
perfect PES scheme does not have any practical relevance.48 According to them,
any attempt to establish a prescriptive definition is destined to be imperfect with the
risk to create a significant mismatch between theory and practice.49 However, the
contractual and institutional implications significantly vary on the basis of the
concrete PES in action.50 It is essential, therefore, to investigate a working defini-
tion of PES that will be used as a starting point for the further articulation of the
present work. In doing so, the paragraph firstly discusses the relevant definitions
elaborated in literature in order to recognise key features of PES; secondly, it
analyses the literature on agri-environmental schemes in the EU Common Agricul-
tural Policy through which the PES concept has been introduced in the European
legal framework; thirdly, it debates on the weaknesses that have been identified in
the implementation of agri-environmental schemes.
A first formalisation of PES is proposed by Sven Wunder, according to which a
PES is ‘a voluntary transaction where a well-defined ecosystem services (or a land-
use likely to secure that service) is being bought by an ES buyer from an ES
provider if and only if the ES provider secures ES provision’.51 An immediate
advantage of this definition is that it provides a distinction among PES and
command-and-control measures and subside scheme.52 In contrast with these latter,
a PES is, in fact, a voluntary and negotiated framework. In any PES, resources—in
most of the cases, an economic resource—flow from at least one ES beneficiary to
at least one ES provider, including the potential intervention of an intermediary in
facilitating the transfer.53 Thomas Greiber further adjusts this definition in a more
43
See Rowcroft et al. (2011), p. 30. See, also, Nsoh and Reid (2013); McCauley (2006).
44
See Engel et al. (2008). See, also, Mauerhofer et al. (2013), Page (2012), and Baranzini et al.
(2008). Compare with Huseby (2015).
45
See, among others, Sattler and Matzdorf (2013).
46
See Derissen and Latacz-Lohmann (2013). See, also, Rowcroft et al. (2011).
47
See Muradian (2010) and Rowcroft et al. (2011).
48
See Perrot-Maı̂tre (2006).
49
See Muradian (2010).
50
See Greiber (2009), p. 6.
51
See Wunder (2005), p. 3.
52
See Wunder (2005), p. 3. For an overview of the use of command-and-control regulations in
environmental policy, see, for example, Goulder and Parry (2008). On the distinction between
command-and-control regulation and incentive-based regimes, see, for example, Baldwin (1997).
53
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legal way, stating that a PES is ‘a voluntary and legally-binding transaction’.54

According to the author, the peculiar aspect lies in the awareness of the ES
beneficiaries that the relating ecosystem service is valuable to them or their
constituencies, while ES providers are required to undertake measurable activities
to secure ecosystem service delivery.55 The resource transfer needs to be condi-
tional to the effective provision of the service or to the performance of land
practices that are likely to secure it.56 The conditionality criterion is linked to the
debated issue of establishing a well-functioning monitoring regime,57 and the
practicability of enforcement.58
In this line, Engel and colleagues recognise another PES preposition: individuals
and local actors are paid to undertake actions that increase the levels of ecosystem
services.59 This aspect is defined in the literature as additionality, i.e. PES focuses
on benefits that go beyond the status quo or what is required by the existing
regulations.60 A recent publication by Forest Trends, the Katoomba Group, and
UNEP further insists on these elements, by maintaining that PES scheme ‘cause
[s] the benefit to occur where it would not have done so otherwise’.61 Therefore, a
PES contract sets up a target that is additional to (1) the status quo and (2) what ES
providers are required by existing regulations or (3) what is normally expected by
them in the carrying out their activities. Indeed, PES is intended to remunerate ES
providers not for obeying the law but for actions that are beyond their
responsibility.62
Such a literature review suggests, as a preliminary point, to focus on the
following principles: (1) parties enter into a PES contract on a voluntary basis;
(2) payment is made by the beneficiaries of ecosystem services, which may include
individuals or groups of them, private companies and public agencies acting on
their behalf; (3) ecosystem service benefits are additional to the status quo and to
what is required by existing regulations; (4) payment is conditional on the ES
delivery or the implementation of specific land-use practice.63
Turning to the implication for the EU policy, the PES has had its role in defining
the EU intervention in ecosystem protection, which aimed to integrate
54
See Greiber (2009), p. 6.
55
See Greiber (2009), pp. 6 et seqq.
56
57
Establishing a baseline is considered a crucial aspect in addressing ES loss and degradation.
Indeed, there is no means to determine a change in ES delivery without first establishing a baseline
to compare against. See Salzman (2009). See, also, OECD (2010).
58
For a comprehensive discussion of this aspect, see Sommerville et al. (2009); Kerr et al. (2014);
Greiber (2009), pp. 53 et seqq.
59
See Engel et al. (2008).
60
See Engel et al. (2008) and Rowcroft et al. (2011).
61
See Forest Trends et al. (2008).
62
See, inter alia, OECD (2010).
63
These principles are also based on the UN Food and Agricultural Organisation’s definition of
PES as ‘voluntary transactions where a service provider is paid by, or on behalf of, service
beneficiaries for agricultural land, forest, coastal or marine management practices that are
expected to result in continued or improved service provision beyond what would have been
provided without the payment’. See FAO (2007).
92 A. Saba
environmental protection within agricultural policy.64 Agri-environmental schemes

were first introduced in the mid-1980s,65 while they became compulsory elements
of the rural development plan of Member States in 1992.66,67 While the first aspect
has been addressed through the introduction of cross-compliance and more recently
the greening component,68 agri-environmental schemes play a key role in achieving
the second.69 Agri-environmental schemes have provided a useful tool,70 through
which Members States can offer voluntary management contracts.71 Those farmers
who voluntary decide to participate enter in a contractual agreement for a fixed
number of years (between 5 and 7 years) under which they receive an annual
64
Relevant literature maintains that agri-environmental schemes ‘filled a lacuna’ within the
Common Agricultural Policy. Indeed, the initial CAP was largely focused on remunerating
agricultural production. No public intervention was established to support the delivery of ecosys-
tem services. This resulted in the damage of valued landscape and habitats in return for farming
intensification being incentivised by the production signals under the CAP. The integration of
environmental consideration into EU policy was recognised by the Treaty of the European Union.
See, among others, Jack (2009), p. 109; Cardwell (2004); Isoni (2015), pp. 185 et seqq. For a
discussion of the PES concept in the EU agri-environmental scheme, see Saunders (2015).
65
See Council Regulation (EEC) No 797/85 of 12 March 1985 on improving the efficiency of
agricultural structures, OJ [1985] L 93.
66
See Council Regulation (EEC) No 2078/92 of 30 June 1992 on agricultural production methods
compatible with the requirements of the protection of the environment and the maintenance of the
countryside, OJ [1992] L 215. At the time, the EU Commission stated that the strategy on the
introduction of environmental aspects in the CAP is that ‘farmers should be expected to observe
basic environmental standards without compensation. However, wherever society desires that
farmers deliver an environmental service beyond this base-line level, this service should be
specifically purchased through agri-environmental measures’. See European Commission, Direc-
tions towards Sustainable Agriculture, COM (99) 22 Final, 28. At this regard, it is worth
mentioning an interesting research area concerning the critical discourse analysis of EU agricul-
tural commissioners on Common Agricultural Policy. See Erjavec and Erjavec (2009, 2015) and
Erjavec et al. (2009).
67
At this regard, it is worth mentioning an interesting research area concerning the critical
discourse analysis of EU agricultural commissioners on Common Agricultural Policy. See Erjavec
and Erjavec (2009, 2015) and Erjavec et al. (2009).
68
For a comprehensive analysis of the introduction of cross-compliance and the greening compo-
nents in the CAP, see Jack (2015), pp. 127 et seqq; Baldock (2015); Scaramuzzino (2015); Bianchi
(2003); Russo (2007).
69
See, among others, Jack (2009), p. 109.
70
It is worth mentioning that an increasing body of literature is discussing PES schemes developed
outside the scope of EU Common Agricultural Policy. In most of these cases, self-organised
private is operated in which ecosystem service beneficiaries contract directly with the providers
via localised exchange arrangements. Two cases are regarded as emblematic in the literature: the
Exmoor Mires project in England, and Vittel mineral waters scheme in France. It shows the
existing potential for designing PES schemes beyond the CAP. On this aspect, see Jack (2015),
pp. 145 et seqq. See, also, Forest Trends et al. (2008). For the Exmoor Mires project, see, for
example, Couldrick (n.d.). For the Vittel case, see Perrot-Maı̂tre (2006).
71
See Jack (2009), p. 109.
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payment in return for undertaking one or more agri-environmental commitments

that are intended to develop the environmental value of the land.72 At the national
level, the measures introduced by Member States provide for a wide range of
objectives, which range from soil and water quality to landscape care and biodi-
versity.73 Agri-environment measures may be designed at national, regional or
local level.74 This allows Member States to adopt agri-environmental measures to
the specific farming landscape and environmental conditions, which largely vary in
its spatial scale.75 Flexibility is particularly needed in order to improve the preci-
sion and effectiveness of the instruments in achieving environmental goals.76
A vast body of literature discusses the contractual arrangements between farmers
or land managers77 and the public authority under agri-environmental schemes.78
According to the literature, agri-environmental contracts seem to follow the general
trend to use contractual arrangements instead of an administrative measure in the
public governance of economic issues.79 It shows to be more effective and efficient
in regulating the relationship between private entities and public administrations.80
More specifically, the agri-environmental contract is considered an optimum in
dealing with ecosystem service benefits that have the characteristics of positive
externalities in economic terms81 than unilateral public impositions.82 According to
the Italian legal literature, agri-environmental contracts represent a good example
of synthesis between the public function of the administration, which establishes
the objectives to be achieved, and the contractual instrument aimed at regulating the
72
See Council Decision 2006/144/EC on Community strategic guidelines for rural development
(programming period 2007–2013), OJ [2006] L 55. See, also, Jack (2009), p. 109. See, also,
Regulation 1305/2013, Art. 28(5).
73
See Österreichisches Institut für Raumplanung (2012) and Kantor Management
Consultants (2012).
74
See European Commission (2005).
75
See European Commission (2005). See, also, Wildlife Link (1995), p. 6.
76
For this reason, agri-environmental scheme has been traditionally classified in two broad
categories: broad brush versus deep and narrow schemes. Broad schemes, also defined as entry
level, encompass a wide land area and require modest commitments in return for a relatively small
payment, thus attracting a large number of participants. Conversely, narrow schemes target ‘site-
specific environmental issues’, by requiring more demanding commitments and providing sub-
stantial payment in return. These lasts are deemed to provide a significant intervention in
protecting and enhancing ecosystem services through the introduction of management practices.
See European Commission (2005) and Kantor Management Consultants (2012).
77
On the qualification of farmer and land manager for the purpose of agri-environmental scheme,
see Carmignani (2007).
78
For a detailed overview of the discussion, see Jack (2009), pp. 109 et seqq; Jack (2015),
pp. 141 et seqq; Carmignani (2008); Adornato et al. (2011), pp. 567 et seqq. Even though it is
less recent than the previous references, see also Adornato (1999).
79
See Germanò and Rook Basile (2014), p. 364.
80
See Germanò and Rook Basile (2014), p. 364. See, also, Adornato et al. (2011), p. 591.
81
See Sect. 2.1 above.
82
See Germanò and Rook Basile (2014), p. 364.
94 A. Saba
respective commitments through the achievement.83 In spite of the lack of a

consistent definition of the contractual instrument in the EU regulations,84 more
details emerge from the national rural development programmes in which the
public administration designs agro-environmental commitments that are embedded
in a contract signed by farmers or land managers and the public authority. It
describes aims, reciprocal obligations and the partial or total withdrawal from it,
thus confirming its consensual nature.85 The key aspects of the contracts are as
follows: (1) to have an autonomous existence; (2) being specifically regulated by
European Union and domestic law; (3) being bilateral, as the obligations concern
both parties; (4) to have a consensual nature, as the commitments are specifically
described from its design; (5) being performed temporarily, having a temporal span
of 3–5 years.86
Within this framework, the literature on law and economics provides useful
insights in further understanding agri-environmental contracts. However, while this
area of research is fast developing, only few contributions address specifically agri-
environmental contracts from a formal point of view. Within this perspective, they
are widely considered incomplete contracts of the quid pro quo type.87 In agri-
environmental contract, the characteristics of incompleteness are a result of lack of
information in terms of hidden information and hidden actions, bounded rationality
and the high transaction cost of obtaining all the required information in order to set
up a well-functioning monitoring and enforcement mechanism.88 Asymmetric
information occurs in the contractual relationship between the farmer or land
manager and the public authority, which results in both hidden information and
hidden action.89 Hidden information occurs before the parties enter into an agree-
ment, i.e. it concerns the pre-contractual situation. Land managers have better
information than the public authority concerning, among others, the opportunity
costs of delivering the ecosystem services and the farming methods used before
entering into the contract.90
83
See, also, Adornato et al. (2011), p. 591.
84
See, inter alia, Adornato et al. (2011), p. 591.
85
Ibid.
86
See Adornato et al. (2011), p. 592.
87
On the concept of ‘incomplete contracts’, see, among others, Williamson (1979), Hart and
Holmstrom (1987), and Baker and Krawiec (2006). See, also, Bellantuono (2000), Bellantuono
(2001), and Granieri (2007).
88
See Polman and Slangen (2007). See, also, Falconera and Saunders (2002).
89
See Polman and Slangen (2007). Compare, mutatis mutandis, with Hirokawa and Porter (2013).
90
It is interesting to note the suggestion of Paul Ferraro in using ‘screening contract’ and ‘pro-
curements action’. See Ferraro (2008). Furthermore, this may result in failing to attract the most
valuable lands in terms of ecosystem services potential. Agri-environmental contract may target
the ‘wrong’ farmers, thus providing an adverse selection. See Polman and Slangen (2007) and
Latacz-Lohmann and Schilizzi (2005). Indeed, a greater incentive to adopt agri-environmental
commitments is placed on farmers with a low potential for delivering high quality ES, than farmer
with high ES potentials. A farmer who has already adopted a low-input farming practice has a
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Imperfect information is at the basis of another barrier, widely known as moral

hazard in literature.91 Imperfect information on farmer’s compliance—i.e., a detec-
tion probability below 100%—represents an incentive to renege a contract.92 In
fact, a farmer who succeeds in avoiding detection for the breaking of the contract
may receive the payment without incurring in the costs implied in performing agri-
environmental commitments. This propensity is, however, influenced by a number
of variables, such as risk propensity and morality. The literature suggests that the
public agency may manipulate four factors in the contract for minimising moral
hazard: (1) the probability of detection, such as the compliance monitoring inten-
sity; (2) the level of fine for contract violations; (3) the strictness of the management
prescriptions; and (4) the payment rate.93 However, even in the case of detecting
contract violations, it emerges the issue of the burden of proving that the failure is
the landholder’s responsibility.94 Indeed, this is not always easy to be proved as
maintained in relevant literature, e.g. the emblematic case of upstream and down-
stream water proprietor.95
What emerges in the EU is a strong top-down driven contractual agreement in
providing agri-environmental schemes,96 with a limited room for negotiating the
local design of the measure in the territory. This results in a lack of incentives for
entrepreneurship.97 Agri-environmental contract that requires performing specific
greater incentive in enter an agri-environmental contract than a farmer with a high-input farming
method. This is due to the comparatively higher changes to current farming methods that the high-
intensity farmer should adopt. In the past, several evidences are been provided on different EU
Member States. See, for example, Hodge (1991) and Whitby (1994). Similarly, Jack takes into
consideration environment rates in agri-environmental schemes against the amount of high nature
value land within individual Member States. See Jack (2015), pp. 127 et seqq. Excluding Finland,
Austria and Slovenia, less than 10% of high nature value land was enrolled. See European
Commission (2013). According to Jack, the findings suggest that Member States failed to use
agri-environmental schemes in protecting ecosystem services protection and targeting environ-
mental priorities. See Jack (2015), pp. 127 et seqq. This is due to poor design by Member States,
and the co-funding rate required by the European Union. The Court of Auditors, for example, has
found that in some cases national agri-environmental programmes had not sought to address
environmental pressures that had specifically been identified in the own national rural develop-
ment. See Court of Auditors, ‘Is Agri-Environment Support Well Designed and Managed?’,
Special Report 7/2011 (Publications Office of the European Union, 2011), para 30. See, also,
Jack (2012).
91
James Salzman, on the same line, recognises three broad categories, which headline may be:
(1) holdout and free riders, which is framed in collective action problem; (2) rent-seeking, in which
potential providers channel the funds to themselves and to increase further their funding; (3) moral
hazards that may encourage undesirable behaviour. See Salzman (2005).
92
See Latacz-Lohmann and Schilizzi (2005), p. 5. See, also, Fraser (1995, 2002, 2004).
93
See Latacz-Lohmann and Schilizzi (2005), p. 5.
94
See Rowcroft et al. (2011), pp. 18, 30.
95
Ibid. See, also, Greiber (2009), p. 6.
96
See, mutatis mutandis, Carmignani (2008).
97
This aspect was observed in early times; see Hodge (2000), pp. 216, 240. Cf. Wilson and
Hart (2001).
96 A. Saba
management practice does not provide farmers incentives to explore new method of
reducing costs, to lock out innovation potential and to take risks in providing
ecosystem services.98 Similarly, there is no incentive for local actor to coordinate
their actions as the public agency concentrates on contract at farm level.99 How-
ever, the focus on site-specific and single-objective contract reflects the complexity
of implementing catchment or landscape scale and multi-objective contracts. A
supporting institutional environment is essential in solving the relating collective
action problems.100 This framework is further complicated by overlaps and unclear
boundaries among national and EU legislation that may lead to ‘double counting’
issues and additionality for agri-environmental schemes.101 An increasing body of
literature is aiming at analysing innovative ways of institutional arrangements in
order to create a collaborative ecosystem governance, in addition to a bottom-up
approach where the self-governance of land managers is supported and local
governance is integrated into contract design.
3 Results-Based Contracting: Current Trends

and Established Issues
3.1 Established Issues in Results-Based Schemes in Europe
As explored in the previous paragraph, the European Union has widely relied on
agri-environmental measures to promote ecosystem service delivery. The contrac-
tual mechanism is relatively remained unchanged over time and continues to
dominate agri-environmental measures in Europe. According to Burton and
Schwarz, this is due to four aspects: (1) monitoring and control activities are
relatively easy to carry out; (2) the level of acceptance among farmers is high,
98
This factor is complicated by the criteria of additionality set out in the EU law, which requires
that payments should be based on the additional cost that land managers have occurred or the
income have forgone in implementing agri-environmental commitments. See Regulation 1305/
2013, Art. 28(6). This requirement further reflects the conditions under the GATT Agreements on
Agriculture. See 1994 GATT Agriculture Agreement, Annex 2, para 12(b). Taking no account of
the value of the delivered ecosystem services, agri-environmental scheme, however, limits its
effectiveness in addressing environmental targets. Areas with high environmental value have
unsurprisingly limited agricultural productivity, thus being subject to farm abandonment due to
the low income obtained. See Jack (2012).
99
On this aspect, see, among others, Latacz-Lohmann and Schilizzi (2005), p. 6 et seqq.
100
See FAO (2007).
101
Jack describes a policy cohesion issue between the requirements of cross-compliance and the
greening component within agricultural production policy and the requirements under the agri-
environment scheme within rural development policy. According to the author, the separation does
not exist in practice. This results, for example, in farmer in one Member States receiving agri-
environmental payment for commitments that are considered cross-compliance requirements in
others. See Jack (2015), pp. 127 et seqq.
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partially because agri-environmental schemes involve rather little change to farm-

ing practice102; (3) there are no compliance issues with the WTO law103; (4) feasible
alternatives are not duly investigated.104
While farmer acceptance and uptake are generally considered indicators of the
success of agri-environmental schemes in Europe, a number of issues are leading
academia and the EU to explore further alternative ways to promote ecosystem
benefits.105 Since mid-2000, the EU policy has begun to draw an increasing
attention in identifying more cost-effective means of paying for ecosystem services.
This is in return for ‘a significant pressure from the World Trade Organisation,
budgetary costs from the eastward expansion of the EU, and growing public
expectations of transparent agricultural subsidies’.106 An option under consider-
ation is the implementation of results-based schemes, where farmers are rewarded
not for performing activity-based standards but for achieving set environmental
outcomes. In 2010, a communication by the European Commission on the future
challenges in the food, natural resources and territorial areas qualified the further
development of results-based approaches of paramount importance, by observing
that ‘such a shift towards a more outcome based approach would best steer the
policy towards EU priorities and show what it actually achieves’.107 On another
occasion, the European Commission noted that there is ‘fairly widely held view that
the tools to maintain and enhance the environment should be more clearly results
oriented’.108
Notwithstanding this increasing interest on results-based agri-environmental
schemes, a significant gap exists in the literature. Even if European-wide research
project started in recent years,109 the state of art is still dominated by grey literature
and research report deliverables. Legal scholarship does not seem to be very aware
102
On this aspect a fascinating and well-developed literature exists. See, among others, Wilson and
Hart (2001).
103
On this, see Cardwell et al. (2003). See, also, Cardwell and Smith (2013).
104
See Burton and Schwarz (2013).
105
These aspects are widely explored in literature and concern fundamentally the issues of
environmental benefits, the cost-effectiveness of the schemes and the ability to promote long-
term cultural change. For the first element, it is worthwhile to note that ecological research has
found that environmental outcomes are often poor in term of both targeted species protection and
general biodiversity. See, for instance, Kleijn and Sutherland (2003). For the second aspect, see
Green (2004) and Quillérou and Fraser (2010). On the cultural change issues, see Burton and
Paragahawewa (2011).
106
See Burton and Schwarz (2013).
107
See Communication from the Commission to the European Parliament, the Council, the
European Economic and Social Committee and the Committee of the Regions, The CAP towards
2020: Meeting the food, natural resources and territorial challenges of the future, COM [2010]
672 final, 11.
108
See European Network for Rural Development and European Commission (2010).
109
For example, a recent online platform has been established by the European Union with the aim
of capitalise the findings in the area of research, particularly on biodiversity. See the website at ec.
europa.eu/environment/nature/rbaps/index_en.htm. Accessed 4 July 2015.
98 A. Saba
of it, though.110 At a conceptual level, a wide range of reference terms are used to
define results-based schemes, including ‘payment-by-results’,111 ‘outcome-ori-
ented’,112 ‘result-oriented’,113 ‘success-oriented’,114 ‘objective-driven’,115 and
‘performance payment’.116 Despite the remarkable wide range of definitions used
in literature, the leading characteristic lies in paying ES providers not for
performing specific management practices (as the case of agri-environmental-
climate schemes in the EU Rural Development Policy) but for delivering ecosystem
targets. Against this background, only few definitions have been specified in the
literature so far.117 These have been elaborated in economic terms; however, there
are several implications that offer insights useful for the purpose of this work.
Burton and Schwarz suggest a working definition, which provides three key char-
acteristics: (1) direct linkage of the payment provision to the environmental out-
come, (2) differentiation of payment levels according to different environmental
outcomes, (3) farmer choice over how best to achieve the desired outcome (in other
words a lack of prescribed farm management changes).118 According to the
authors, such a results-based approach may provide room for developing innovation
on the side of the ES provider, i.e. the case of farmers who can draw on their own
know-how and experience to achieve the set results.119
In the real world, a continuum of approaches exists that ranges from
management-based approaches to those that are based on the environmental out-
come achieved without any consideration of the methods used.120 While it is
relatively easy to distinguish results-based approach to management-based
approach at the conceptual level, this categorisation remains more complicated in
practice in consideration of the wide range of ways in which a scheme can be
designed.121 Therefore, the literature provides a threefold categorisation based on
the payment and compliance monitoring mechanisms used. A pure results-based
scheme recognises only the effective delivery of ES benefits, which are measured
by one or more of environmental indicators.122 The control mechanism focuses on
the extent to which environmental results are achieved, as regulated in the agri-
110
See, on a more general level, Kistenkas (2014).
111
See Schwarz et al. (2008), Klimek et al. (2008), and Groth (2009).
112
See H€oft et al. (2010), Latacz-Lohmann (2010), and Lockie and Carpenter (2010).
113
See Gerowitt et al. (2003), Oppermann (2003), H€ oft and Gerowitt (2006), and Matzdorf and
Lorenz (2010).
114
See Haarena and Bathkeb (2008).
115
See Burger (2006).
116
See Zabel and Holm-Müller (2008) and Zabel and Roe (2009).
117
See Burton and Schwarz (2013), p. 630. See, also, White and Hanley (2016).
118
Ibid. See, also, Schwarz et al. (2008).
119
See Burton and Schwarz (2013), p. 637.
120
See Keenleyside et al. (2014), p. 1.
121
See, also, Allen et al. (2014), pp. 6 et seqq.
122
Ibid.
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environmental contract. A management-based scheme is the one traditionally

implemented in Europe in which farmers receive payments in return for the
performance of management practices specified in the agri-environmental commit-
ment. In this case, the compliance mechanisms observe whether agri-environmental
commitments have been fulfilled. Finally, a hybrid scheme catches both elements of
the previous categories.
The relationship between the previously called pure results-based schemes and
hybrid scheme has been further explored by Burton and Schwarz.123 The authors
provide a categorisation based on three elements: (1) the proportion of income
derived from outcomes, (2) the sensitivity of the payment structures, (3) the
temporal extent of the contracts and schemes. They discuss how these elements
vary along a continuum that ranges from weakly results-oriented to strongly results-
oriented. While each of these dimensions can weaken/strengthen the overall results-
based contract, the key challenge is to find the correct balance.124
Results-based schemes are increasingly developing across Europe.125 The
schemes largely target biodiversity conservation with a significant attention to
grassland habitats and plant and animal species. Wider ES benefits, e.g. pollution
and carbon sequestration, are reported in the literature, but only few are well
established worldwide and can be considered results-based approach.126 Germany
shows a well-established experience in designing results-based schemes, which
prevalently target the preservation of species-rich meadows. This is the case for
those operated in Baden-Württemburg,127 Lower Saxony128 and Brandenburg.129
Similarly, the Netherlands implements results-based schemes that are aimed at
enhancing the breeding success of meadow bird.130 Early cases were operating in
the United Kingdom targeting conservation of hay meadow and pasture plants
species131 and in Switzerland in which ecologically valuable networks of meadows
were established.132
In spite of an increasing experimentation of the results-based approach, a
number of barriers are identified in the literature, which is limiting the adoption
of such schemes in EU Member States. A research report, commissioned by the
European Commission, indicates a range of factors affecting their implementation,
mainly focused on socio-cultural issues.133 Other elements concern the increase in
123
See Burton and Schwarz (2013), pp. 636 et seqq.
124
Ibid.
125
See Schwarz et al. (2008).
126
See Mayrand and Paquin (2004).
127
See Oppermann (2003).
128
See, for example, Wittig et al. (2006).
129
See, among others, Matzdorf and Lorenz (2010).
130
See, for example, Musters et al. (2001).
131
See Buckingham et al. (1998).
132
See Oppermann (2003).
133
These factors include ‘i) the broader history and level of ambition with agri-environment
implementation to date; ii) socio-cultural issues, such as capacity and experience within the
100 A. Saba
the risk associated with results-based programmes and the relating implications in
attracting land managers134 as well as the complexity of developing ecosystem
delivery indicators.135 In addition, the scope of results-based scheme may be
constrained by WTO requirements for Green Box eligibility.136
3.2 Results-Based Contracting: An Emerging Legal

Mechanism in Governing Ecosystems
Although a number of definition of results-based schemes have been provided in

economic terms, the underlying contracting mechanism seems to defy a legal
definition. The lack of well-developed cases is a complicating factor in building a
robust definition.137 Indeed, it results in grasping points along a fluid, fast-moving
and complex continuum. Notwithstanding this, the paragraph proposes a working
definition that attempts to throw light on the emergence of such a legal mechanism,
by focusing on its essential attributes. It is aimed at contributing to the current
discussion by building a common understanding of the emerging contractual
mechanism. However, the definition will refrain to confer to the term a precision
that the contracting mechanim has not already achieved in the real world; other-
wise, there will be the risk to miss its essential nature and be contradicted by future
policy developments.
Before the discussion moves to the working definition, it is important to clarify
the use of the term legal mechanism. For the purpose of the definition, a legal
mechanism refers to a set of principles or common arrangements that are adopted in
designing and operating contracts. For results-based contracting, I propose this
working definition: a legal mechanism for an entity to remunerate a provider for
the achievement of set environmental outcomes with or without specifying relating
agricultural practices, by signing a voluntary, deliberate and legally binding
Managing Authorities; iii) varying levels of mutual trust between farmers and Managing Author-
ities; iv) resistance from land managers, due to concerns about non-payment if results are not
achieved for reasons beyond their control and v) concerns about potentially higher operating costs
(although this latter concern is also true of moving to more tailored and targeted management-
based schemes). Understanding and overcoming these barriers will be critical in developing
results-based approaches further in the EU’. See Allen et al. (2014).
134
See Sattler and Nagel (2010).
135
On this aspect, see Matzdorfa et al. (2008).
136
So far, no sufficient attention has been paid on the fact that results-based payment are not likely
based on income forgone and additional costs occurred by land managers, thus potentially in a
state of non-compliance with the WTO requirements. See Hasund and Johansson (2016); Siebert
(2010) and Schwarz et al. (2008).
137
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agreement, that goes beyond what is required by the law, in a particular location, at
an agreed-on consideration, for a specified period of time.
Each contract is embedded in the overall strategy provided by the agri-
environmental scheme implemented in the particular location. Within a single
agri-environmental scheme, a number of different contracts, or even different
kinds of contracts, may be deemed necessary to achieve the overarching goal.138
Owing the complex nature of the given undertakings, the assumption here is that
parties necessarily enter into a contractual agreement of some kind.139 Such an
agreement will provide a common understanding of the reciprocal obligations,
rights and risk allocation. The actual form of the agreements largely depends on
local conditions and practices. It may, generally speaking, vary from a simple
handshake and unwritten contracts to formal and written documents.140 However,
there are significant advantages in designing enforceable written contract, which
may constitute a record in case of disagreement and increase the moral significance
of the given undertakings.141
Like every contract, the identification of the parties of the agreements is an
essential step in designing the instrument. The legal status of the parties influences
in large part the relating contractual details.142 For the purpose of the working
definition, we understand an entity as the beneficiary party of the contractual
transaction. This maintains the reference to the beneficiary-pays principle, as
already provided in the relevant literature on PES.143 The entity may be either
public or private and act for itself or its constituencies, i.e. for the interest of the
public towards the provision of ecosystem services.144 In the experience emerged in
Europe, a public body normally initiates the design of a contracting scheme in the
presence of diffuse beneficiaries.145 However, the level of the involved adminis-
tration obviously depends on the scale of the ecosystem service provision: from
local to regional or even national government.146 In this context, most of the
schemes are co-funded through the Common Agricultural Policy, specifically the
pillar on rural development through the agri-environmental (climate) measures.147
138
For example, see the results-based MEKA-B4 programme in place in Baden-Württemberg
(Germany) between 2000 and 2014. See Russi et al. (2016) and Burton and Schwarz (2013).
139
Cf. Greiber (2009), p. 45.
140
The ‘cooperation for grassland bird protection’ (‘Gemeinschaftlicher Wiesenschutz’) scheme,
implemented in various regions of Schleswig-Holstein, involves only verbal agreements. Specific
management requirements are agreed verbally between the farmer and the contact person at the
beginning of the bird breeding season. Martina Bode, Kuno e.V. (personal communication,
interview).
141
Cf, mutatis mutandis, Greiber (2009), pp. 45 et seqq.
142
Cf. Greiber (2009), pp. 46 et seqq.
143
144
145
See Keenleyside et al. (2014). Cf. Salzman (2009), pp. 25 et seqq.
146
See Keenleyside et al. (2014).
147
See Allen et al. (2014).
102 A. Saba
Even if there are no documented cases of results-based schemes in which private

bodies are involved, this does not preclude the development in the near future. This
chance may be particularly likely in consideration of the increasing role played by
self-governed network of local actors in protecting and enhancing ecosystems. In
particular, when ecosystem services affect discrete beneficiaries,148 private entity
might be more willing to implement such a contract for ensuring or enhancing its
provision in the future.149
On the other side, service providers may have different legal forms, ranging
from large-scale agricultural holdings to individual farmers and environmental
cooperatives. However, the legally binding nature of the contract may raise some
issues on the nature of the potential party that is worthwhile giving further consid-
eration. A group of local group of land managers may be precluded to enter into
such a contract without further work for their legal incorporation.150 This was
solved through a range of alternative options that largely depend on local circum-
stances and practices. The example of agri-environmental cooperatives in the
Netherlands provides fascinating insights in this regard and proved to be successful
in a number of cases.151 More recently, the EU Rural Development Regulation
1305/2013 introduced, under article 28, the option of group applications for agri-
environment-climate measures.152
For the purpose of the working definition, we understand to remunerate as the
negotiated act of transferring a sum of money or other consideration, from an entity
to a services provider, in return for the achievement of set environmental out-
148
Cf. Salzman (2009), pp. 25 et seqq.
149
Mutatis mutandis, the case of Bavaria Brewery in the province of North-Brabant, in Nether-
lands, provide useful insights in this vein. Even if it is not a results-based scheme, the initiative in
this case is largely taken by the private stakeholders. The case concerns one brewery, a network of
about 70 farmers and other stakeholders, including the regional water board, the municipality and
the province of North-Brabant. There are similar cases on freshwater management in other areas in
the Netherlands. See van der Heide and Polman (2016).
150
Cf. Greiber (2009).
151
See Franks (2008), Franks and Mc Gloin (2007a), and Franks and Mc Gloin (2007b). Even if
there are less recent, it is interest to confront with Renting and van der Ploeg (2001) and Wiskerke
et al. (2003).
152
Article 28(2) of the EU 1305/2013 provides that ‘agri-environment-climate payments shall be
granted to farmers, groups of farmers or groups of farmers and other land-managers who under-
take, on a voluntary basis, to carry out operations consisting of one or more agri-environment
climate commitments on agricultural land to be defined by Member State’. See Regulation
(EU) No 1305/2013 of the European Parliament and of the Council of 17 December 2013 on
support for rural development by the European Agricultural Fund for Rural Development
(EAFRD) and repealing Council Regulation (EC) No 1698/2005, OJ [2013] L 347/487. On the
contrary, the repealed Regulation 1698/2005, under article 39 (2), limited only to farmers the
option for granting agri-environmental payments. See Council Regulation (EC) No 1698/2005 of
20 September 2005 on support for rural development by the European Agricultural Fund for Rural
Development (EAFRD), OJ [2005] L 347/487.
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comes.153 This understanding assumes that the entity is aware that it is remunerat-
ing the achievement of one or more environmental outcomes that are valuable to it
or its constituencies.154 Conversely, the non-state provider engages in a meaningful
and measurable way to secure the negotiated outcome. However, the achievement
of the environmental outcome does not have prescriptive nature in the contractual
agreement. Indeed, the provider shall seek to achieve the set outcome, although
there is no obligation to do so. As the work will analyse later, mutual trust between
parties in performing the contract is crucial.
The definition of an environmental outcome is an essential point in designing a
results-based contract that should be based on the most complete and up-to-date
information available. However, a consensus on the characteristics of an acceptable
environmental outcome has not been established.155 In particular, the outcome may
not be easily measured at all times, as well as may vary at different times of the day
or year.156 Considering the complication in determining the output levels, the
chance of farmers’ complaints may likely rise on the basis of unfair treatment.157
Thus, a strong ecological research base is required in defining environmental out-
comes and choosing effective result indicators, consequently establishing a relation
link between the results to be remunerated and the achievement of the specific
environmental outcome.158 We understand the achievement of a set environmental
outcome as the fulfilment of a result indicator that has proved to be capable to
determine, measure and quantify environmental output, at a farm or landscape
scale. In the experience gained in Europe, schemes have used a vast number of
result indicators, which can be direct or indirect, simple or composite. As
maintained by the relevant literature, ‘only if effective results indicators can be
found is it worth exploring the feasibility of a results-based approach’.159 Result
indicators need to be not only balanced, context specific, easy to be understood and
measured at reasonable cost for service providers but also transparent and resistant
to influencing factors beyond the control of the providers.160 In this line, a further
complicating factor is that some environmental objectives may require a landscape-
scale action. Careful consideration is therefore paid to whether the overall agri-
environmental scheme needs to design individual contracts or may be more
153
In policy there is a variety of term that are used to refer to the mentioned act of transferring,
such as to compensate, to reward, to incentivise, etc. Notwithstanding the fact that they are used in
an interchangeable way in practical situations, significant difference exists. Cf. Russi et al.
(2016), p. 70.
154
155
156
157
See Keenleyside et al. (2014), pp. 18 et seqq.
158
For the 2014–2020 period, Rural Development Programmes are required to explicate how an
agri-environment-climate scheme can be expected to deliver an environmental benefit, by proving
any suitable evidence. See European Commission (2013).
159
160
104 A. Saba
adequate a collective contract in which individual parties work together in a

coordinated way.161 However, further research is essential in this area in order to
address some implementation issues, such as the best way to coordinate farmers’
commitments to the achievement of a result that depends largely on the action of
others.162
The provision of monitoring activities plays an important role in ensuring the
success of the contract, in particular assuring that the payment is conditional to the
effective achievement of the environmental outcome. So far, a number of monitor-
ing compliance mechanisms have been implemented, including periodic reporting
and auditing, field checks and self-evaluation of the farmers.163 Against this
background, it is important to keep the monitoring mechanism as simple as possi-
ble. It needs to involve open, reliable, transparent and unambiguous monitoring
activities in order to enhance confidence and reduce operating costs at a reasonable
level.164 A significant number of cases involve self-assessment as a means of
monitoring. The measurement of result indicators and recording the achievement
is a contractual obligation for the provider. This has proved to increase the involve-
ment and understanding of the management and the resulting environmental out-
come, by allowing a first-hand experience of the results progressively achieved.165
3.3 Dealing with Risk, Uncertainty and Change

in Results-Based Contracts
When we deal with ecosystem services, we operate under a persistent information,

or partial knowledge vacuum.166 In the real world, ecosystem services provision
depends not only on local circumstances and conditions but also on their features
that at any given moment we only partially understand. Notwithstanding the efforts
we put on ecological research and experimentation, our understanding is deemed to
remain incomplete. When the parties enter into a contractual agreement, they act on
the basis of the best currently available information. However, as the obligations
undertaken concern a system that is in itself dynamic and unpredictable, the
contacts involve a degree of risk and uncertainty that we need to manage. This
risk and uncertainty are intensively present in results-based contracting where the
161
In this vein, it is worth mentioning the case of a number agri-environment cooperative in the
Netherlands that have continued to operate a form of results-based meadow bird agreement since
the previous scheme under European Agricultural Fund for Rural Development was terminated in
2004. See de Lijster and Prager (2012).
162
On this, Prager (2012, 2015), Reed et al. (2014), and Prager et al. (2012).
163
Cf. Keenleyside et al. (2014), pp. 13 et seqq.
164
165
See Keenleyside et al. (2014), pp. 13 et seqq.
166
See Sect. 2.1 above. See, also, Karkkainen (2002).
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service provider is not rewarded for performing activity-based activities that are
likely to secure environmental outcomes, but it is remunerated for the direct
achievement of the outcomes itself. Even if action-based contract involves a certain
degree of risk, results-based contract increases risk for farmers in an unstable
way.167 In this vein, Westerlink and colleagues asked to what extent ‘it is fair to
hold a farmer responsible for the outcome of his measures, while he is greatly
depending on natural processes and the surrounding environment, including the
behaviour of his neighbours’.168 Leaving aside the debated issue of whether it is fair
or not, the aim of this contribution is to introduce a possible strategy that may help
in dealing with the uncertainty and risk involved in results-based contracting, by
introducing flexibility and dynamism into the contract. In results-based contracting,
the search for optimal fixed terms may be completely unrealistic and chimerical.
We need to expect surprise and mid-course corrections that may be informed,
among others, by new learning and unpredictable external events. Providers need
to be confident to be treated in a fair and objective way; thus, trust and cooperation
will play a fundamental role.
A possible option is to further enhance the relational nature of the contract. A
relational contract relies on the trust between parties that enter a contractual
relationship in order to work together for a mutual benefit outcome, being aware
that contractual positions may change during its performance.169 The relational
contracts usually emerge under conditions of uncertainty, complexity and
unpredictable changes, as widely analysed by the contract literature.170 Such
contractual arrangement is particularly common in business contexts, where flex-
ible relational contracts are essential.171 Results-based contracting requires an
ongoing collaboration among parties in carrying out joint adaptive problem solving
under condition of complexity and uncertainty. Such an arrangement is definitely
more open-ended and relational in character than the classical model of two-party
and fixed rules bargaining. This requires an involvement of the providers in the
design and development of the contract from the beginning of the scheme imple-
mentation.172 This will allow them to build ownership and commitment to their
undertakings. Such starting point needs to be further developed through mutual
trust between the parties involved in the contractual agreements.173 This is partic-
167
See Burton and Schwarz (2013), pp. 633 et seqq. Also, cf. Westerlink et al. (2008) and Aviron
et al. (2010).
168
See Westerlink et al. (2008), p. 25.
169
For a comprehensive discussion of relational contract, see, among others, Goetz and Scott
(1980) and Macneil (1985).
170
See Goetz and Scott (1980), pp. 1111 et seqq.
171
See, among others, Feinman (2000) and Diathesopoulos (2010).
172
Cf. Allen et al. (2014), pp. 99 et seqq.
173
Ibid.
106 A. Saba
ularly relevant for the managing authority and the providers. The non-prescriptive
nature of the requirement on results achievement and the associated uncertainty
made even more important such aspect.174 In practical terms, this may require a
high degree of facilitation and constant negotiation in addition to communication
and training measures.175 However, criticism may be questioned regarding the real
chance that parties have sufficient incentives to maintain such a collaborative
relational arrangements towards the real provision of the set environmental out-
comes. There is a need to further explore contractual strategies that might trigger
collaboration and keep the service provider on track towards the results. The
introduction of adequate default clauses in the contract might offer a solution.
The present study suggests two contractual positions: a collaboration-reinforcing
default clause and a safeguard default clause.
A collaboration-reinforcing default clause purposely provides a harsh outcome
on the provider but subject to a contrary agreement, thus implicitly producing an
incentive to further contract an explicit alternative contract term.176 In the case of
results-based contracting, the payments are conditional to the measured achieve-
ment of the set environmental outcomes, as specified in the contracts. The harsh
event may basically consist in not receiving the agreed-on payment or in reimburs-
ing the advance payment if provided. It will result in the service provider bearing all
the cost occurred and the income foregone in performing the contractual obliga-
tions. Through a collaboration-reinforcing default position, the service provider
may have the option to avoid the application of the penalty by voluntarily initiating
an alternative course of action. Upon approval of the beneficiary entity, this
alternative contract term may be a reasonable substitute for the otherwise applicable
penalty. The default position acts both as information-forcing and action-forcing
effect.177 Considering the first aspect, the service provider may tend to disclose
information—i.e., asymmetrical information—in order to secure the approval of the
beneficiary entity. In addition to the information that the provider has already held,
it may be the case for disclosing new information that it is best situated to provide.
In relation to the action-forcing effect, the service provider is induced to voluntarily
propose and implement an alternative plan to avoid the harsh event. Such contrac-
tual position may be further strengthened by a complementary clause that we can
call safeguard default clause. It provides that compliance—i.e., the achievement of
the environmental outcome at a lesser extent to what it was specified in the
contract—will be assessed to the reasonable satisfaction of the beneficiary entity.178
174
175
Ibid.
176
Mutatis, mutandis, see Ayres and Gertner (1989a, b), pp. 91 et seqq.
177
Ibid.; Goetz and Scott (1980), p. 1300. See, on a more general perspective, Schwartz (1994).
178
Cf. Greiber (2009), p. 54.
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4 Governing Ecosystem Services: A Call for New

Governance Arrangements?
After having analysed the contractual arrangements associated with, the question is,
now, what law can do in building supportive governance for better implementing
such a new results-based instrument. Legal scholars, still, have to play a role in
bringing to the table—in which ideally an interdisciplinary group of researchers is
seated—crucial expertise in regulatory and institutional design. However, it is
undeniable that a results-based approach has a range of characteristics that compli-
cate the legal intervention, as the chapter has reviewed earlier. In particular, a
progressive shift should be made from (A) the current status quo where largely
top-down mechanisms are driven by governmental institutions that seek to deliver
the goals of national and European regulations through the implementation of
top-down and individual agreements to (B) a more holistic and collaborative
approach in which local governance is integrated and self-governed local networks
of land managers are supported, thus capitalising on the entrepreneurial spirit of
private actors.179 In doing this, law and governance need to learn how to deal with
uncertainty, changes and risks.180 However, many regulatory systems lack the
necessary flexibility to accommodate dynamic systems.181 The legal and institu-
tional rigidity can limit the effectiveness (i.e., the experimentation necessary) of
results-based interventions in dealing with the dynamics of ecological and social
systems.182 Indeed, the need for certainty in the legal process does not allow it to
take account for scale and tends to lock in ‘fixes’.183 If results-based approach will
continue to increase in number and scope, the law needs to learn fast as it can only
succeed if rules evolve with the system of interest.184
Within this rather new perspective, design challenges for governing ecosystem
services through a results-based approach consist in understanding (1) how to adapt
to unpredictable changes that may occur in the social-ecological system, thus
coping with the connected uncertainty and risk for public authority, private actors
and civil society at large. However, uncertainty and risk decrease progressively as
we understand (2) how to learn from the experience accumulated on the ground and
create a rolling regime where the legal framework and its regulatory targets may
co-evolve. This also involves awareness of the need to (3) coordinate the different
scales of ecosystem management (e.g., from farm and local level to landscape and
regional scale) and the scope of complex policy mix that may include a variety of
179
Cf. Burton and Schwarz (2013).
180
See Garmestani and Benson (2013) and Garmestani et al. (2013). Compare, also, with
Cumming (2013).
181
See Ostrom (2009) and Liu (2007).
182
See Garmestani et al. (2008).
183
Ibid. See also Chen (2003).
184
See Garmestani and Benson (2013). See, also, Karkkainen (2002). Finally, it is interesting to
compare with Simon (2006), pp. 37 et seqq.
108 A. Saba
environmental objective and approaches. In order to strengthen this, further efforts

should be placed to understand (4) how to better involve private actors and enhance
their role in maintaining ecosystem benefits, by incentivising the self-organisation
of local network of private actors.185
Such a complex issue requires a variety of analytical tools combined together.
The proposal here is to adopt a kind of collaborative and adaptive ecosystem
governance that capitalises on the research development that has been achieved
in a number of policy innovations so far.186 However, such innovations have been
largely carried out in isolation, usually with a limited cross-fertilisation.187 The
starting point of this reflection is dominated by the research findings of the
governance through contract perspective.188 It describes ‘a complex,
multidimensional arrangement of societal exchange’ and may be adapted to the
multitude of agri-environmental measures currently implemented.189 Such an
emphasis may provide a useful insight in translating ‘conflicting, overlapping,
and diverging societal rationalities into its own legal language’.190 Along this
paragraph, the term ‘governance’ has not been used without purpose. Indeed,
governance—and governance through contract, more specifically—has an inter-
disciplinary nature that provides a conceptual bridge that facilitates the dialogue, by
capitalising on insights receiving from different disciplines.191 Our understanding
of contractual and legal rules increases. In addition to the classical ex post point of
view on concluded events, it allows us to take an ex post perspective.192 Rules are
understood not only as a means for dispute resolutions but also as a mechanism for
steering and coordinating the behaviour of its addressees.193 The dialogue with
human behavioural sciences becomes crucial for understanding and designing such
governance mechanisms.194 Indeed, governance through contract provides the
overarching legal framework in which the rules are elaborated and influences on-
the-ground contracting.
Along with this perspective, the proposal links two other legal innovations: the
so-called adaptive law and reflexive law. The first position describes an adaptive
185
Cf. Wiskerke et al. (2003).
186
Cf. Karkkainen (2002); Garmestani and Allen (2014).
187
Cf. Gunningham (2009).
188
See Zumbansen (2007) and Grundmann et al. (2015).
189
See Zumbansen (2007), p. 233.
190
Ibid.
191
See van Kersbergen and van Waarden (2004), Zumbansen (2007), and, mutatis mutandis,
Williamson (1998). For a comprehensive analysis on the use of term ‘governance’ in literature,
see, among others, Burries et al. (2008).
192
See Grundmann et al. (2015), pp. 41 et seqq; M€ oslein and Riesenhuber (2009), pp. 248 et seqq.
193
Ibid.
194
An increasing literature is debating the relationship between legal research and behavioural
sciences. See the recent publication edited by Mathis (2015).
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and resilient law framework.195 According to Arnold and Gunderson, the features
of such a system are ‘multiplicity of articulated goals; polycentric, multimodal, and
integrationist structure; adaptive methods based on standards, flexibility, discretion,
and regard for context; and iterative legal-pluralist processes with feedback loops,
learning, and accountability’.196 As this theoretical framework is embedded in
American legal context, further research needs to understand how (and to what
extent) it may be adopted in the European context. Based on the dynamics of social
and ecological system, we will need to understand how such adaptive legal frame-
work may provide a set of principle for a more resilient legal system, which evolves
in response to ‘interconnected and complex transformations in both nature and
society’.197
The second position, namely reflexive law, may improve aspects of adaptive law
for managing social and ecological systems.198 In a reflexive law perspective,
institutional and social structures are matched together through facilitation, rather
than command-and-control regulation.199 In real-world context, Nolon maintains that
reflexive law may act as a means through which a legal system ‘imposes procedural,
rather than substantive requirements that are designed to trigger reflexive responses
among those implicated in the problem that the proscribed features are designed to
solve’.200 Instead of detailed legal norm rules for a specific issue, reflexive law
provides a procedural process with freedom for innovation.201 More specifically,
reflexive law sets the standards or goals for a regulated action and works with
regulated entities to achieve the set outcome.202 It takes into account that set out-
comes may change in response to new learning around the system of interest.203
The implications of such a perspective are far from being adequately explored. It
will require further work in building a robust and consistent framework, which will
need to be semantic, conceptual and theoretical. Further research will have to build
a common vocabulary and analytical tools that allow us to deal with the challenges
and opportunities posed by these developments. This work has only provided a first
preliminary step in throwing light on the possibility to build a category of collab-
orative and adaptive ecosystem governance.
195
For a comprehensive discussion of the concept of ‘adaptive law’, see, among others, Arnold and
Gunderson (2013), Walker and Salt (2006), Humby (2014), mutatis mutandis, Baker (2015),
Angelo (2008), and Ruhl (2005). In relation to the design of adapting institutions, see Boyd and
Folke (2012).
196
See Arnold and Gunderson (2013), pp. 4 et seqq.
197
See Arnold and Gunderson (2013), p. 36. See, also, Humby (2014) that discusses the general
features of the law and resilience literature. The author notes that these concepts are gaining
increasing attention among legal scholars.
198
For a comprehensive discussion of the concept of ‘reflexive law’, see Garmestani and Benson
(2013), Teubner (1983), Scheuerman (2001), Orts (1995), Gaines (2003), and Fiorino (1999).
199
See Garmestani and Benson (2013), pp. 3 et seqq; Teubner (1983).
200
See Nolon (2009), p. 9. See also Tamanaha (1999).
201
See Orts (1995).
202
See Garmestani and Benson (2013) and Teubner (1983).
203
See Fiorino (1999) and Allen et al. (2011). Cf. Dedeurwaerdere (2005).
110 A. Saba
Drawing on the experience gained in Europe through an increasing number of

results-based schemes implemented, this chapter has proposed a working definition
of the underlying contracting mechanism. However, the definition has refrained to
confer a precision that the instrument has not already achieved in the real world. It
attempted to provide a contribution in building a first common understanding from
a legal perspective. This led the discussion to the analysis of the implications
associated with the implementation of the contractual mechanism, such as the
definition of the environmental outcome as set in the agreement and the related
selection of indicators monitored. A particular attention has been given to the need
for results-based contracting to deal with the risk, uncertainty and change associ-
ated with such a results-based approach. The work found that the search for optimal
fixed terms is deemed to be unrealistic and chimerical. In performing the contract,
parties need to expect surprise and mid-course corrections. A possible strategy
option is to further enhance the relational nature of the contract. Indeed, results-
based contracting requires an ongoing collaboration among parties in carrying out
joint adaptive problem-solving under condition of complexity and uncertainty.
Such strategy solution may be further strengthened by the inclusion of adequate
default clauses. The study has suggested two complementary positions: a
collaboration-reinforcing default clause and a safeguard default clause.
After having analysed the contractual arrangements, the role of law in building
supportive governance for better implementing such a new results-based instrument
has been discussed. A results-based approach has a range of characteristics that
complicate the legal intervention. The work has identified a number of relating
design challenges, and it has maintained that such a complex issue requires a
variety of analytical tools combined together. It proposed a very preliminary
category of collaborative and adaptive ecosystem governance that capitalises on
the research development that has been achieved in a number of legal innovations
so far. Drawing its inspiration from the governance through contract perspective,
the work linked two other legal innovations: adaptive law and reflexive law.
However, the implications of such a perspective were far from being adequately
explored. Much more work is needed to build a consistent and comprehensive
framework that is able to guide on-the-ground decisions about contractual and
regulatory design across different social and ecological contexts.
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www.ebook3000.com
The Legal Instruments
for Agri-Environmental Goals
and the Influence of International Factors:
The Case of Swiss Agricultural Policies
Christa Preisig
1 Introduction
When the Swiss Federal Council published its first report on the national agricul-
tural policy and the situation of Swiss agriculture in 1956, it did not make any
mention of the environment. On the contrary, agricultural policy and, accordingly,
agriculture focused on production, which was considered the main function of
Swiss farming. The detrimental consequences of these practices only became
visible and were brought to attention a couple of years later. Since then, Swiss
agriculture has undergone substantial changes when it comes to the protection of
the environment. Thus, the recently published OECD report on Swiss agricultural
policies reaches the conclusion that Switzerland’s agriculture has made significant
progress concerning the targeted environmental goals set by the Swiss
government.1
How did these changes make their way into binding laws and regulations? Many
of those improvements in Swiss agriculture took place over the past two decades
and seem to coincide with the substantial agricultural policy reforms that have been
implemented since 1993. The article aims at analysing those policy reforms from a
legal perspective with regard to their significance for the agri-environmental goals
of Swiss agriculture. The first section (Sect. 2) will analyse Swiss agricultural
policy and its development over the last few decades.
1
OECD (2015), p. 41.
C. Preisig (*)
University of Lucerne, Lucerne, Switzerland
e-mail: christa.preisig@gmail.com

124 C. Preisig
This analysis will help us understand the current legal basis of Swiss agriculture
and its historical development. The Swiss Constitution2 is the legal superstructure
for both agriculture as well as the environment and its protection. To understand the
regulation of Swiss agriculture and the ecological conditions it is required to meet,
it is crucial to examine the relevant constitutional norms more closely (Sect. 3).
The Constitution sets the fundamental goals and limits for the formulation of the
Swiss agricultural policy and is therefore the basis for the ecological goals in
agriculture. How the agri-environmental goals are actually implemented is the
subject of Sect. 4. In this section, the legal instruments aiming at actually reaching
the agri-environmental targets that were introduced on the basis of the agricultural
policy reforms will be discussed. This requires an outline of the relevant measures
provided by Swiss law, chiefly those enforced under the Federal Act on Agriculture
(AgricA),3 as well as the specific acts dealing with different aspects of the protec-
tion of the environment (e.g., the Federal Act on the Protection of Waters4).
The Constitution is not the only legal determinant for ecological concerns
surrounding Swiss agriculture. As a small country, Switzerland depends on inter-
national trade. Its agricultural sector is no exception; it is also subject to interna-
tional trade and competition, although to less of an extent as other economic
branches since Swiss agriculture still enjoys considerable subsidisation and eco-
nomic border protection. What is more, Switzerland lies in Europe’s heart, but it is
not a member state of the European Union. Not surprisingly, the political and
economic relations between Switzerland and the EU are naturally close. This raises
the question as to what extent international legal factors and developments have an
impact on Swiss agri-environmental targets. Section 5 will therefore look more
closely into possible international influences such as legislation on international
trade with agricultural goods. From a Swiss point of view, WTO legislation and the
treaties between the EU and Switzerland are of particular relevance in this context.
Apart from trade-related regulation, public international legal developments
concerning environmental standards are also possible sources for the norms on
Swiss agri-environmental targets.
In the conclusion (Sect. 6), the legal implications for the environment and
agriculture will be discussed as a concluding remark, deliberating what influence
the international legal developments, as well as the debates on the Swiss legal
framework for agricultural policy, have on the Swiss agri-environmental goals.
2
Federal Constitution of the Swiss Confederation of 18 April 1999 (Cst.), SR 101. The English
translations of certain acts and laws provided by the on-line portal of the Swiss government have
no legal force, but will be used for the purposes of this article.
3
Federal Act on Agriculture of 29 April 1998 (AgricA), SR 910.1.
4
Federal Act on the Protection of Waters of 24 January 1991 (Waters Protection Act WPA), SR
814.20.
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The Legal Instruments for Agri-Environmental Goals and the Influence of. . . 125
2 The Development of Swiss Agricultural Policy
2.1 1950s–1970s: Focus on Production
Two years after the Federal Act on Agriculture (AgricA) came into force,5 the
Federal Council published its first Agricultural Policy Report. The report draws the
picture of an agricultural sector that is entirely oriented towards production: one of
the main goals is to guarantee the Swiss population a secure supply with food that is
as far as possible produced in Switzerland.6 The intention of this focus on produc-
tion was to minimise dependence on food imports from abroad,7 an idea that was
certainly also influenced by the experiences of food shortages during the Second
World War. Since 1947, the introduction of a legal basis concerning national
economy gave the government broader competences to take measures within the
framework of the Federal Act on Agriculture for supporting farmers’ production
efforts financially.8 The Second and the Third Agricultural Policy Reports,
published in 1959 and 1965, are permeated with the thought of providing a
sufficient supply of food produced on the domestic market for the Swiss population.
One of the proposed measures to reach this goal was the preservation of a produc-
tive and successful agricultural sector.9 In its Second Agricultural Policy Report,
the Federal Council therefore suggested—among other measures—to encourage
farmers to produce with as little effort as necessary and by utilising every technical
progress and possibility of rationalisation available.10 This also explains the praise
of the extensive use of fertilisers and technological advancements for the sake of
increasing productivity per farmland area unit in the Third Agricultural Policy
Report.11 With this focus on production and productivity, environmental concerns
did not play any role whatsoever yet. Natural conditions were only of importance
when it came to determining which agricultural branch to support; the more
difficult the natural circumstances were, the more financial aid was distributed.
Accordingly, the Third Agricultural Policy Report specifies that production should
not be increased generally but in a target-oriented way.12 Since the geographical
and topographical conditions (predominance of hilly and alpine regions) in Swit-
zerland favour livestock farming, the subsidies led to considerable overproduction
of dairy and meat, which let the Federal Council conclude that the financial aids
should concentrate more on crop cultivation.13 The motivation behind this more
5
AS 1953 1073.
6
Bundesrat (1956), p. 328.
7
8
Cf. Bundesrat (1956), p. 327.
9
10
11
Bundesrat (1965), p. 432 et seqq.
12
Cf. Bundesrat (1965), p. 481 et seqq.
13
126 C. Preisig
refined strategy of financial aids was, however, not environmental but purely
economic. The Fourth Agricultural Policy Report of 1969 deepens this more
target-oriented subsidisation and seeks to govern production chiefly by means of
pricing policy and sales policy.14 For the first time, however, increasing production
is not the main concern; the Federal Council even clarifies that the goal was not self-
sufficiency of food supply but an agricultural production in accordance with
economic principles.15 The significance of this statement after almost two decades
of emphasis on increasing production must not be underestimated. The same goes
for the first gentle hint to ecologic argumentation: the Fourth Report states that for
the good of the people, the desertification of landscapes due to the “extensification”
of farming should be prevented.16 The Fifth Agricultural Policy Report dating from
1976 more than just mentions environmental concerns in only one sentence. In the
context of the growing quantity of livestock in Switzerland, the report states that an
excessive size of farms was undesirable in view of the protection of the environ-
ment.17 Furthermore, the production of food for the Swiss population is henceforth
explicitly called one goal among others,18 and even if it is a main goal of Swiss
agriculture to enhance self-sufficiency,19 production is not of utmost priority
anymore as it used to be 10 years earlier. Yet the government is still hesitant as
to what to think of this new conception and the future role of agriculture that was
undergoing a transformation. Thus, it proposes that science shall find ways to
‘optimise’ the use of fertilisers or analyse ‘non-conventional’ farming,
i.e. organic farming.20 In a general way, the report remarks that agriculture should
take account of an environmentally friendly production21; it does, however, not
propose any legal measures on how to reach or foster this aim.
2.2 Starting from the 1980s: Awareness for the Environment
In the 1980s, the growing awareness of the need for protecting the environment22
also found its way into governmental documents. Agriculture needed to take better
14
15
Cf. Bundesrat (1969), p. 495. From today’s perspective, the accordance with economic princi-
ples is difficult to identify in the view of the heavy subsidisation and the philosophy of guiding
agricultural policy through pricing and sales policies.
16
17
18
19
20
21
22
Cf. e.g. the elaborations on the growing concerns of the population and the apparent change of
perception of agriculture from nourishing to causing ecological problems which the Federal
Council seems to discern among Switzerland’s citizens; Bundesrat (1992a, b), pp. 417 et seqq.
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care of the environment. In its Sixth Agricultural Policy Report, the Federal Council
makes a point of noting that there are certain requirements and obligations to meet
in order to respect constitutional provisions, e.g. concerning water protection or
environmental protection.23 More concise plans for action, let alone proposals for
legal measures, however, were not part of Swiss agricultural policy yet. A reference
to the Federal Act on Water Protection or the newly introduced Federal Act on the
Protection of the Environment with its provision on soil protection needed to
suffice.24 Production is still one of the most important goals for agriculture;
extensive farming is not deemed an option, although the government is admitting
that there are certain environmental issues to be solved.25 Accordingly, environ-
ment protection has made its way into the main targets of Swiss agricultural policy,
right next to production of food or the preservation of agricultural structures.26
Said targets are still the same in the Seventh Agricultural Policy Report.27 New
is the emphasis on the special responsibility for the protection of the environment
that agriculture has according to the government and the clear statement that
agriculture has to meet the environmental goals anchored in the Constitution.28
For the first time, the report also clearly lists the environmental problems caused by
farming.29 It concludes that persuasion and raising awareness among farmers some-
times is not enough, so—in the sense of an ultima ratio—legal action needs to be
taken as subsidiary measure.30 Starting point was the list of several norms already
in effect aiming at the general direction of the protection of the environment (e.g.,
water protection, air pollution, fertilisers, soil protection) that the Federal Council
enumerates in its report.31 Apart from those legal measures aiming at the protection
of specific natural subject matters of protection such as water or air by means of
legislation targeting their preservation in general, the regulation of agriculture itself
also made significant steps forward. Agricultural policy was revised completely;
especially, the direct payment system underwent fundamental changes.
2.3 Decoupling and Proof of Ecological Performance
The 1990s brought the separation of pricing policy and income policy concerning
financial aids for farmers; receiving direct payments no longer depended solely on
23
24
Cf. Bundesrat (1984), pp. 591 et seqq.
25
26
27
Cf. Bundesrat (1992a), p. 215.
28
29
30
Bundesrat (1992a), p. 261.
31
Cf. Bundesrat (1992a), pp. 261 et seqq.
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the production of food (decoupling).32 At the same time, an environment- and

livestock-friendly production was made a condition for receiving direct payments;
hence, first basic environmental requirements were introduced.33 Farmers who
chose to take additional voluntary steps towards ecologic production (e.g., organic
farming) could apply for additional payments under the new art. 31b AgricA 1992
and profit from positive incentives. The new orientation of Swiss agricultural policy
was made possible by an amendment of the constitutional basis for agriculture.
Previously, agriculture was only mentioned in the context of the provision on the
economic system: agriculture was listed as one of the exceptions to the principles of
the economic system allowing to foster a ‘healthy farming community’ and an
‘efficiently performing agriculture’ by the means of subsidisation, which awarded
the government the competence to diverge from the economic principles for the
sake of agricultural policy. The new constitutional basis for agriculture also
included ecological and social goals and tasks for agriculture. They were from
then on no longer purely economic and oriented towards production. The legislator
and the Swiss people—upon acceptance of the referendum necessary for the
amendment of the Constitution—thus kept up with the political developments
and incorporated the additional aims of agriculture that had evolved over the past
two decades into the Constitution (see Sect. 3). A new federal competence for
introducing a more eco-friendly system of aids and subsidies had been created.
The agricultural policies of the first decade of the new millennium continued and
further developed this course. The new constitutional basis for agriculture
demanded the introduction of the so-called proof of ecological performance—a
provision that came into effect with art. 70 of the revised AgricA in 199934—that
farmers had to furnish in order to receive direct payments.35 Direct payments linked
to production were reduced, decoupled direct payments increased.36 The profound
changes in agricultural policy and the new regulations were implemented gradually;
farmers had to readapt, and in 2002 the government did not see any need for further
profound changes; the new agricultural policy should thus be pursued steadily from
then on.37 The focus was visibly on ecologic and sustainable farming; the services
of public interest provided by agriculture and the financial support thereof and,
additionally, new direct payments for the sustainable use of natural resources were
introduced in 2008.38 The newest Agricultural Policy 2014–2017, currently under
32
For the reasons for these changes in the system, see Bundesrat (1992b), pp. 1 et seqq.
33
Art. 31a(4) AgricA 1992, AS 1993 1571.
34
AS 1998 3033. The introduction of the proof of ecological performance made Switzerland to one
of the forerunners in introducing environmental cross-compliance conditions, OECD
(2015), p. 13.
35
Bundesrat (1996), pp. 7 and 203 et seqq.
36
Bundesrat (2002), p. 4730.
37
Bundesrat (2002), p. 4723.
38
AS 2007 6095. For the concept and reasons behind the new payments, see Bundesrat (2006),
pp. 6441 et seqq.
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implementation, carries on with the approach of removing potential links between

direct payments and production. Direct payments such as headage payments and
general area payments—both potentially inciting production and distorting the
market, headage payments in addition causing environmental problems related to
livestock farming—are reduced. Therefore, the degree of the reduction depends on
the area; in the mountain area, certain links to animal numbers remain—e.g., for the
direct payments in mountain areas, for the maintenance of open farmland or for
ensuring reliable food supplies (see below, Sect. 4.2). Overall, direct payments are
more clearly targeting the compensation of services of public interest provided by
agriculture.39 The necessary changes of the Federal Act on Agriculture pertaining
to the newly tailored direct payments entered into force on 1 January 2014.40
3 The Constitutional and International Superstructure
While the new direct payment system is currently being implemented, the consti-
tutional backbone governing agriculture and the environmental requirements it has
to meet goes further back in time. As the history of the agricultural policy in
Switzerland shows (see above, Sect. 2), the law and policy governing agriculture
are closely intertwined with the Constitution. It seems that the political will to
change agricultural policy led to amendments of the Constitution and not the other
way round. Those amendments were needed to ensure that the constitutional pro-
visions were congruent with the intended changes of agricultural policy. The
government thus received the legal competences to advance agricultural policy,
e.g. towards more ecological farming methods, when policymakers realised that the
focus on production had harmful effects on the environment. Constitutional pro-
visions play an important role. They anchor the basic intentions and provisions that
are to be concretised by the legislator. In the context of agriculture and the
protection of the environment, there are several pertinent provisions. It is on the
one hand the already mentioned provision on agriculture itself and the provisions on
environmental protection on the other hand. This section will give a brief overview
of the content of said articles in the Swiss Constitution. To complete this section on
the legal superstructure of agro-ecology in Switzerland, a glimpse of the pertinent
international laws and treaties for agro-ecology in Switzerland will complete this
section.
39
For the new system of direct payments see Bundesrat (2012), pp. 2190 et seqq.
40
AS 2013 3463.
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3.1 Agriculture
In its art. 104, the Swiss Constitution provides that the Confederation shall ensure
that the agricultural sector, by means of a sustainable and market-oriented produc-
tion policy, makes an essential contribution towards the reliable provision of the
population with foodstuffs, the conservation of natural resources and the upkeep of
the countryside, as well as the decentralised population of the country.41 The
constitutional provision on agriculture came into effect in 199642 and is a witness
to the shift from a purely economic to an environmental-friendly understanding of
agriculture. It thus kept up with the gradual changes in Switzerland’s agricultural
policy (see above, Sect. 2). Nonetheless, production remained paramount for the
definition of agriculture. New was the clear commitment to a market-oriented and
sustainable production that the amendment introduced. With the notion of sustain-
ability, the legislator meant all three spheres thereof: economic, ecological and
social sustainability.43 The Swiss Constitution contains a separate provision on
sustainability, which will be outlined hereafter. In the context of the topic of this
article, the focus is on the ecological component of sustainability.
3.2 Sustainability
As art. 104 Cst. explicitly mentions a sustainable and market-oriented production as

main goals of agriculture, along with multifunctionality, sustainability44 is a guid-
ing constitutional principle for Swiss agricultural policies.45 Agriculture is thus a
prime example for the observance of the principle of sustainability that must serve
as a guideline in every agricultural regulation and policy.46
The question remains how to unite those two goals of sustainability and market
orientation. First of all, farming is per se oriented towards production; the imple-
mentation of sustainable agriculture intended by the legislator and the Swiss people
therefore proves difficult from the very start since farming means the use of natural
resources such as soil and water. Second, sustainability itself is a fuzzy term that
lacks clear definition. What does sustainable production and sustainable agriculture
mean? In a very general way, art. 73 Cst. governing sustainable development states
that the ‘Confederation and the Cantons shall endeavour to achieve a balanced and
41
Federal Constitution of the Swiss Confederation of 18 April 1999 (Cst.), SR 101, art. 104(1).
42
AS 1996 2502. After the complete revision of the Constitution in 1999, the former art. 31octies
Cst. on agriculture received a new number (and one minor terminological change) and is hence-
forth art. 104 Cst.
43
Bundesrat (2006), p. 6356; Richli (2005), p. 153.
44
On the legal notion of sustainability, see Ott and D€
oring (2008).
45
Richli (2005), p. 153.
46
Cf. Hofer (2011a), pp. 5 et seq.
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sustainable relationship between nature and its capacity to renew itself and the
demands placed on it by the population’. The provision itself is not justiciable and
therefore cannot be subject to direct claims.47 It is, however, a guiding principle and
compass for any legislation governing environmental issues or topics touching on
environmental concerns.48 It is the task of the legislator to fill this provision with
meaning, e.g. to ensure its concretisation and implementation by enacting pertinent
legislation along the guidelines of the constitutional provision on sustainability.49
This is of particular importance for agriculture since it has direct impacts on soil,
water and air, where intensive production in agriculture had caused damages before
awareness for environmental protection started to increase.50 Growing concerns
about these detrimental effects were one of the reasons that the notion of sustain-
ability got incorporated into the Swiss Constitution. This happened at the occasion
of the adoption of the new provision on agriculture in 1996.51 Agriculture is thus
explicitly one example for legislation touching on the sustainability provision.
Article 104(3) Cst. contains first hints on what the legislator must have
envisioned when it comes to acting along the lines of ecological sustainability: if
the Confederation takes measures based on its competences derived from art.
104 Cst., it must respect agriculture’s multifunctional duties (art. 104(3)(a) Cst.).
The Confederation has the power to encourage ‘methods of production that are
specifically near-natural and respectful of both en environment and livestock’ by
means of ‘economically advantageous incentives’ (art. 104(3)(b) Cst.), and it has
the duty to protect the environment ‘against the detrimental effects of the excessive
use of fertilisers, chemicals and other auxiliary agents’ (art. 104(3)(d) Cst.).
3.3 Protection of the Environment
Regarding the latter duty of environmental protection, on the constitutional level,

namely, art. 74 Cst. governing the protection of the environment and art. 76 Cst.
titled water are pertinent. Interestingly, the provision on the protection of the
environment was already adopted in 1971, making Switzerland one of the first
states in Europe to ever include environmental protection in its Constitution.52 At
the time of its introduction into the Constitution, the duty to protect the environment
was understood as all encompassing53; consequently, legislation on environmental
protection would eventually be targeting agriculture as a potential polluter too. This
47
Cf. Swiss Federal Tribunal, Case 1A.115/2003, para 3.2.
48
Rausch (2001), p. 918.
49
Cf. Vallender (2014), note 32.
50
51
52
Cf. Morell and Vallender (2014), note 1.
53
Maurer (1995), p. 30; BBl 1970 I 776.
132 C. Preisig
led to the first ecological requirements that agriculture had to fulfil in the context of
the basic provisions on environmental protection (e.g., based on the Water Protec-
tion Act of 197154 or, 10 years later, the Environmental Protection Act of 198355).
More incisive conditions, however, were only adopted since the 1990s (see Sect. 2).
Article 74 Cst. contains the main competence for environmental protection and is
the legal basis for numerous laws, each governing particular aspects of environ-
mental protection. Next to this general provision, there are several additional
constitutional provisions to more specific protected subject matters such as water
(art. 76 Cst.), forests (art. 77 Cst.) or sites of natural and cultural heritage (art.
78 Cst.),56 fishing and hunting (art. 79 Cst.) or the protection of animals
(art. 80 Cst.).57 Object of protection is the population and its natural environment.
Environment in the sense of the Constitution signifies the natural—i.e., not the
economic, social, technical or cultural—environment of humans. It contains ani-
mals and plants, as well as their habitats, air, soil, water, climate and the ecosys-
tems.58 The Confederation has the duty to legislate to protect the population and its
natural environment against damage or nuisance (art. 74(1) Cst.). Damage or
nuisance shall be avoided (art. 74(2) Cst.); environmental protection is thus subject
to the precautionary principle.59 The costs of avoiding or eliminating damages or
nuisances are borne by those who caused them (art. 74(2) Cst.); the polluter-pays
principle aims at internalising external costs.60
3.4 Water
A more specific provision than the general norm on environmental protection with
direct relevance for agriculture is art. 76 Cst. on water.61 With the three subjects of
the use of water, the protection of water and the protection against the harmful
effects of water (e.g., floods), art. 76(1) Cst. enumerates the three functions of the
constitutional provision.62 In the context of environmental protection, especially
the protection of waters, is of interest. With its quantitative and qualitative aspects,
it has a twofold meaning: water shall be used in a sustainable and non-exhausting
way; in addition, its protection against damaging influences and nuisances shall be
ensured. In Swiss agricultural law, the aspect of qualitative protection—e.g., due to
54
AS 1972 950.
55
AS 1984 1122.
56
For more details on the protection of natural heritage in agriculture, see Maurer (1995).
57
Morell and Vallender (2014), note 6.
58
Cf. Morell and Vallender (2014), note 8.
59
See with further references Morell and Vallender (2014), note 20 et seqq.
60
See with further references Morell and Vallender (2014), note 28 et seqq.
61
For more details on water protection in Switzerland, see Hettich et al. (2016).
62
Marti (2014), note 2.
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manure,63 fertilisers, etc.—is paramount, whereas the legislation on quantitative

water protection is regulated in the Water Protection Act.64
3.5 Forest, Natural and Cultural Heritage, Animals
Another natural resource that agriculture needs to respect is the forest and its
functions. Forests in Switzerland enjoy a strict quantitative and qualitative protec-
tion against reduction of forest areas, as well as against indirect influences damag-
ing the quality of the forest’s ecosystem. In the context of agriculture, the strict
protection of forest and the subsequent strict ban on forest clearance have led to a
considerable increase of forest area in alpine regions at the expense of farmland,
which sometimes causes frictions between the interests of forest protection and
agriculture.65
Natural and cultural heritage—i.e., the countryside and places of architectural,
historical, natural or cultural interest—is protected according to art. 78(1) Cst. The
Confederation ‘shall legislate on the protection of animal and plant life and on the
preservation of their natural habitats and their diversity’; endangered species shall
be protected from extinction (art. 78(4) Cst.). The state also has the obligation to
preserve moors and wetlands of special beauty and national importance (art. 78
(5) Cst.).
Finally, art. 80(1) Cst. stipulates that the Confederation shall legislate on the
protection of animals. Article 80(2) elaborates that it shall, in particular, regulate
the keeping and care of animals (lit. a), the use of animals (lit. d), the trade of
animals and the transport of animals (lit. f) and the killing of animals (lit. g).
Animals are protected because of their inherent value and the dignity of the
creature.66 Protection entails that animals are not treated as objects but respected
as creatures and that human actions do not cause them harm or pain.67 Farmers
keeping livestock are thus required to comply with legislation based on the consti-
tutional provision on animal protection.68
63
For more details see Hettich et al. (2016); Brunner (2002), pp. 538 et seqq.
64
Maurer (1999), p. 399.
65
Vgl. Bundesrat (2011), pp. 4401 and 4405.
66
Errass (2014), note 8 et seqq.
67
Errass (2014), note 15.
68
Maurer (1999), p. 413.
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3.6 International Public Law on the Protection

of the Environment in Agriculture
The above-mentioned constitutional articles on environmental protection were

introduced or broadened in their scope in accordance with and as a reaction to the
rising international social and political concerns about the environment since the
1970s. The Rio Declaration on Environment and Development, for instance, even-
tually led to the introduction of the term of sustainability into the Swiss Constitu-
tion, first as an element of the new provision on agriculture and then as a separate
article on sustainability.69 Thus, even legally non-binding declarations and confer-
ences did have an influence on the Swiss Constitution by leading to the introduction
of the principle of sustainable, environment-friendly production in agriculture.
Other than that, however, there is no evidence that international environmental
law is of direct importance for agro-ecology in Switzerland. In contrast to the
constitutional provisions on the environment and agriculture, there are no directly
relevant international treaties on agro-ecology.70 One example for a ratified binding
international instrument is the Convention on the conservation of European wildlife
and natural habitats (Bern Convention).71 It governs certain aspects of natural
protection and biodiversity. By way of example, this treaty does entail an obligation
for the Swiss lawmakers to ensure the implementation of the environmental goals of
the Bern Convention, which may necessitate the introduction of regulations for
farming.72 The Bern Convention itself, however, does not directly target agriculture
or agro-ecology and is therefore—unlike the constitutional provisions on environ-
mental protection—not a direct legal source that establishes agri-environmental
goals.
Since Switzerland is not a member state of the EU, agri-environmental pro-
visions in the EU law is not binding for Switzerland, and the bilateral treaties
between Switzerland and the EU do not contain provisions on agro-ecology.73
3.7 Legal Instruments and Conflict of Goals
Swiss agro-ecology is thus mainly governed by the Swiss Constitution rather than
by international law. The constitutional provisions give the federal legislator the
competences to enact regulation in order to further concretise the constitutional
69
Cf. Vallender (2014), note 1 et seqq.
70
As to the influence of other sources of international law that do not directly concern environ-
mental law, such as international trade law and EU law, on Swiss agro-ecology, see Sect. 5 below.
71
Convention on the Conservation of European Wildlife and Natural Habitats (Bern Convention),
SR 0.455.
72
See Sect. 5.1 below.
73
See also Sect. 5.3 below.
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goals and, most of all, implement them. The classic way to do so is by introducing
binding regulation—e.g., requirements, bans—for the protection of the environ-
ment. The introduction of bans or requirements is the classic regulatory legal
approach, and the Swiss lawmaker has adopted various of these legal instruments
in order to regulate the protection of the environment. The Constitution does not
just give the legislator the competence to enact legislation; in the case of environ-
mental protection, the Constitution also lays down a duty to protect.74 Furthermore,
the principle of sustainability is binding for the government in all its actions and
lawmaking processes.75 It is, however, not always possible to meet all conditions
for every sphere of sustainability simultaneously; in particular, the economic and
ecological aspects often collide in agriculture. The Swiss legislator tries to reach
both goals of economic and ecological sustainability in agriculture by mitigating
economic income losses of farmers by providing them with financial incentives—
direct payments—for environmental-friendly forms of production.76
Thus, the classic regulatory instruments based on the constitutional provisions
are undoubtedly important for the protection of the environment in Switzerland.
Specifically for the agri-environmental goals, however, the instrument of monetary
incentives is decisive. By making direct payments for environment-friendly behav-
iour, Swiss agricultural policy and laws seek to set incentives for Swiss farmers to
produce ecologically. This strategy is more widely accepted among farmers than
the classic regulatory approach. Farmers criticise that the binding laws and regula-
tions are too incisive, hinder their economic development and have been introduced
too abruptly.77
Conflicts of goals are inherent in the Constitution. The outlined provisions on
environmental protection in the Swiss Constitution collide with agricultural inter-
ests of a market-oriented production policy. Yet the constitutional provision on
agriculture demands that agricultural production must be sustainable, thus
encompassing an ecological component. It is not an easy task for the legislator to
implement the constitutional provisions and avoid conflicts of goals as far as
possible; compromises and participation of all stakeholders involved are a common
practice.78 This holds particularly true for agriculture and agro-ecology, which
needs to follow a holistic approach in order to ensure a better interaction and
transdisciplinarity.79 The following section gives an overview of the legal instru-
ments derived from the Constitution that govern and implement the ecological
goals in Swiss agriculture.
74
Cf. Maurer (1995), p. 30; see also Hofer (2011a).
75
Cf. Hofer (2011a), p. 12.
76
Cf. Brunner (2002), p. 551.
77
Cf. Schmid (2002), p. 4.
78
Cf. Biedermann (2002), pp. 496 et seqq.
79
Cf. Noe and Alroe (2015), p. 32.
136 C. Preisig
4 Implementation of the Agri-Environmental Goals
Constitutions naturally only draw the big lines for the legislation of a state. It is no
different for agriculture and the environmental requirements that it needs to meet.
The details are left to the legislator to regulate. Basically, there is neither a
definition nor an explicit enumeration of the ecological requirements, i.e. the
agri-environmental goals that agriculture has to meet to be found in the Constitu-
tion. How does the government make sure that the constitutional provisions on
environmental protection are nonetheless implemented? In accordance with the
constitutional provisions governing agriculture and the protection of the environ-
ment, the legislator has enacted numerous laws and ordinances touching on this
very subject. The enacted regulation defines more precisely how the legislator
envisages the implementation of the environmental goals set forth by the Consti-
tution and thus also paints a clearer picture about the ecological conditions that
agriculture has to observe. This section will give an overview of the most important
ones containing legal instruments intended to ensure an environment-friendly
agriculture. The selection is by no means exhaustive.
4.1 Definition of Agri-Environmental Goals?
As stated above (Sect. 3.1), agriculture has to apply production methods that
comply with the principle of sustainability and conserve the natural resources.
This goal set forth in art. 104 Cst. is taken up by the Swiss Act on Agriculture,
which repeats the aims word by word in art. 1 AgricA. There is, however, no
precision as to what the observance of a sustainable production and the conserva-
tion of natural resources means. In other words, it remains unclear which environ-
mental targets agriculture actually has to meet, let alone how their implementation
shall be ensured. Greater clarity is provided by an ordinance issued by the Federal
Council. The so-called Ordinance on the Assessment of Sustainability in Agricul-
ture80 targets the evaluation of the economic, ecologic and social effects of agri-
cultural policy and agriculture by means of a periodic review and regular
monitoring (cf. art. 1(2) Ordinance on Sustainability Assessment). Apart from the
fact that the evaluation and monitoring itself can be categorised as one of the
various measures promoting an environment-friendly agriculture, the interesting
finding is the provision stating which aspects the government wants to monitor.
Article 8(1) Ordinance on Sustainability Assessment stipulates that the develop-
ments concerning the ecologic performance of agriculture and its effects on the
natural resources shall be evaluated. By defining the ecological indicators to be
monitored, the government simultaneously also defined the agri-environmental
80
Verordnung über die Beurteilung der Nachhaltigkeit in der Landwirtschaft vom 7. Dezember
1998, SR 919.118.
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goals to be targeted by agriculture. The assessment of the impacts of agriculture and

agricultural policy on the environment requires an understanding of what goals the
evaluation actually pursues. In other words, the assessment of sustainability in
agriculture is not an end in itself. It only makes sense if the findings of the
assessment allow for a verdict on the target achievement. Hence, the targets are
implied and can be deduced by the indicators that are being monitored.
A closer look at the indicators reveals that the Confederation has chosen a broad
definition of agri-environmentally correct farming: the Ordinance lists several agri-
environmental indicators, i.e. the circulation of substances in the environment,
energy consumption, pollutant emissions, soil productivity, biodiversity and live-
stock farming (art. 9(1)(a–e) Ordinance on Sustainability Assessment). The indi-
cators are to be defined by the Federal Office for Agriculture in collaboration with
other administrative authorities concerned with matters of environmental protec-
tion, as well as ‘interested circles’ and other institutions (art. 9(2) Ordinance on
Sustainability Assessment). Therefore, comparability of the indicators with inter-
national norms and standards shall be ensured (art. 8(3) Ordinance on Sustainability
Assessment). The agri-environmental goals are further specified in an
encompassing Report on the Environmental Objectives of Agriculture outlining
the contributions and achievements expected of agriculture in the following four
areas: biodiversity and landscape, climate and air, water, and soil.81 Basis of the
report are the international and national legal environmental requirements on the
constitutional level as well as required by acts, ordinances and decrees issued by the
Federal Council.82
As the Ordinance on the Assessment of Sustainability in Agriculture and the
Report on the Environmental Objectives of Agriculture shows, there are two
different legal approaches to achieve the goal of an ecologically sustainable agri-
culture. The first one focuses on agriculture as the potential polluter with adverse
effects on the environment (thus the monitoring of pollutant emissions in agricul-
ture). The second approach places the object of protection at the centre, as shown in
the Report on the Environmental Objectives of Agriculture with its four defined
areas of subject matters. The regulation governing environmental protection and
agriculture also follows this logic, as will be outlined in the following sections.
Both approaches then make use of mainly three different legal techniques: there is
the option of providing positive incentives for a more environment-friendly agri-
culture, or there is the classic preventive-prohibitive approach based on the pre-
vention and repression of damages and nuisances. There is also the third option of
market-economy-based measures such as incentive taxes or steering taxes,83 which
will not be discussed in this article.84
81
Bundesamt für Landwirtschaft and Bundesamt für Umwelt (2008).
82
Bundesamt für Landwirtschaft and Bundesamt für Umwelt (2008), p. 5.
83
As to the topic of taxes as instruments for the greening of agriculture (in Germany), see
M€ ockel (2006).
84
For the classification of legal instruments governing environmental policy, see Morell and
Vallender (2014), note 16 with further references.
138 C. Preisig
4.2 Agriculture as a Potential Source of Pollution
The first approach is pursued by the Act on Agriculture. As potentially endangering

the environment—thus with farmers as potential polluters—the AgricA addresses
environmental protection in several sections. It is clearly favouring positive incen-
tives over prohibitive or market-economy-based measures: One of the decisive
objects of the AgricA is the provisions on direct payments. The decoupled direct
payments (see Sect. 2.2) are awarded ‘to pay for public and ecological services
provided by farms’ and ‘to promote the sustainable use of natural resources and
animal and climate friendly production’ (art. 2(1)(b,bbis) AgricA). These public and
ecological services are by-products of agricultural production and the cultivation of
land.85 It is a political decision if and to what extent they shall be compensated.86
The current direct payment system in Switzerland provides payments for the
maintenance of open farmland (art. 71 AgricA), for ensuring reliable food supplies
(art. 72 AgricA), for biodiversity (art. 73 AgricA), for the quality of the landscape
(art. 74 AgricA), for production systems promoting ‘near-natural and environmen-
tally and animal friendly types of production’ (art. 75 AgricA), for the efficient use
of resources (art. 76 AgricA) and bridging direct payments to mitigate the income
losses of the direct payment reform (art. 77 AgricA). Out of the seven different
types of direct payments, three have a clearly ecological target: biodiversity (art.
73 AgricA), ecological production systems such as organic farming or extensive
production87 (art. 75 AgricA) and the efficient use of resources (76 AgricA).
Meeting the criteria—further specified in the Ordinance on Direct Payments—is
not compulsory. Applying for direct payments is optional; thus, compliance with
the provisions on direct payments theoretically is too, although direct payments are
in fact crucial for the Swiss farmers’ incomes. They are thus positive incentives for
a more environment-friendly agriculture.
All direct payments—i.e., also the ones without ecological component—are,
however, subject to compliance with the provisions of legislation on the protection
of waters, the environment and animal welfare (art. 70a(1)(c) AgricA), as well as
the proof of ecological performance according to art. 70a(1)(b) AgricA. This means
that farmers applying for direct payments must ensure appropriate conditions for
livestock, a balanced use of fertilisers, an adequate proportion of land set aside for
biodiversity, compliance with the regulation on the correct use of objects of
national interest, a regular, appropriate crop rotation and soil protection, as well
as a specific choice and application of plant protection products (art. 70a(2)(a–g)
AgricA). The proof of ecological performance makes sure that agriculture reaches a
minimum level of environmental protection, which, by the way, includes animal
85
Cf. Popp (2011), p. 31 with further references.
86
Popp (2011), p. 37.
87
Art. 2(e) Verordnung über die Direktzahlungen an die Landwirtschaft vom 23. Oktober 2013
(Direktzahlungsverordnung DZV), SR 910.13.
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welfare. Animal welfare is thus considered as one of the agri-environmental targets.

Additional efforts are rewarded in the sense of arts. 73, 75 and 76 AgricA.
The AgricA makes use of both legal instruments since it does not only work with
positive incentives but does in fact also contain prohibitive instruments. There are,
for instance, provisions giving the authorities the competence to take repressive
preventive measures against agricultural inputs or plant material that are suspected
to have undesirable side effects on the health of humans, animals, plants or the
environment and if it is highly likely that such side effects will occur or that the
consequences thereof are far-reaching (art. 148a(1) AgricA). In the context of the
import of agricultural goods, art. 18(2)(b) AgricA bans goods produced by using
methods that endanger the environment. This latter instrument is, strictly speaking,
only indirectly influencing domestic environmental protection since it is targeting
import and not production. More pertinent legislation directly including agriculture
in its scope can be found in acts protecting specific objects of protection such as
waters or the environment in general.
4.3 General Provisions on Subject Matters of Protection
By way of example, the general provisions on environmental protection of rele-

vance for agriculture will be outlined in this section, following the structure of the
respective constitutional provisions summed up above (Sect. 3).
The Environmental Protection Act (EPA)88 does not contain specific provisions
on agriculture. However, with its declared aim ‘to protect people, animals and
plants, their biological communities and habitats against harmful effects or nui-
sances and to preserve the natural foundations of life sustainably, in particular
biological diversity and the fertility of the soil’ (art. 1(1) EPA), agriculture can also
fall under the scope of the Act. The required early preventive measures (art. 1
(2) EPA) and the polluter-pays principle (art. 2 EPA) are of relevance for agricul-
tural activities, too.
Since water is a particularly sensible subject matter of protection in the context
of agriculture, the Waters Protection Act contains provision on the use of farm
manure. Thus, all animal husbandry farms must balance their use of manure (art. 14
(1) WPA). Manure is to be used for agricultural and horticultural purposes ‘in an
environmentally compatible way and according to the state-of-the-art’ (art. 14
(2) WPA); in addition, farms need to ensure manure storage capacities for at least
3 months (art. 14(3) WPA). There is a maximum of three livestock units of
manure89 that may be spread on 1 ha of agricultural land (art. 14(4) WPA). Cantons
88
Federal Act on the Protection of the Environment (Environmental Protection Act EPA), SR
814.01.
89
One unit of manure corresponds to the average annual production of liquid and solid manure by
one cow weighing 600 kg, art. 14 (8) Federal Act on the Protection of Waters of 24 January 1991
(Waters Protection Act WPA), SR 814.20.
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can reduce this number of livestock units of manure ‘if the pollutant-bearing
capacity of the soil, the altitude and topographical conditions so require’ (art. 14
(6) WPA). Finally, farms providing manure must record each delivery of manure in
an information system (art. 14(5) WPA). More generally, art. 27(1) WPA states that
soils must ‘be used according to the state of the art, in such a way that waters are not
adversely affected in any way, in particular avoiding both washing away and
leaching of fertilisers and plant treatment products’.
In the same context, another particularly vulnerable subject matter in the context
of agricultural practices is the soil, which is confronted with problems such as the
use of fertilisers, phosphate, erosion, compaction, desertification or the difficult
maintenance of soil fertility. Other than for water, there is no all-encompassing act
on soil protection. This does not mean that the soil remains unprotected. On the
contrary, the Federal Office for Agriculture (FOAG) has published extensively on
the effects of agriculture on the soil; it monitors relevant developments and has
elaborated strategies for soil protection, addressing problems such as erosion or soil
pollution and practical guidance documents on the avoidance of such risks.90
Ordinances such as the Ordinance on floor loading91 based on the Environmental
Protection Act complete the strategy and ensure its implementation. Said ordinance
aims at monitoring chemical, biological and physical strains on the soil or sets down
measures for the avoidance of soil compaction and erosion.92
4.4 Ordinances and Information Sheets
The approach chosen for soil protection is exemplary for various other subject
matters. Based on the agri-environmental goals, the government has elaborated
strategies for the protection of the outlined subjects, e.g. for the field of climate
change in the context of agriculture.93 If there is no specific act, a construction of
reports, evaluations, information sheets for the practitioner and ordinances based on
more general acts, such as outlined above (Sects. 4.2 and 4.3), build a backbone for
the implementation of agri-environmental goals. This way of proceeding has the
advantage that the strategies can be adapted more efficiently and easily since
administrational authorities and not the legislator in parliament elaborate them.
This gives the administration greater flexibility to react on recent developments and
to readjust to these new situations. Thus, the several ordinances on agricultural
90
Cf. the documentation at http://www.blw.admin.ch/themen/00010/00071/00128/index.html?
lang¼de.
91
Verordnung über Belastungen des Bodens vom 1. Juli 1998 (VBBo), SR 814.12.
92
Cf. art. 1 VBBo.
93
The different strategies and measures concerning agriculture and climate change are listed on the
website of the Federal Office for Agriculture, http://www.blw.admin.ch/themen/00010/00071/
00265/index.html?lang¼de.
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inputs are adapted almost on a yearly basis in order to keep up with the technolog-
ical and scientific developments and findings.94 At the same time, it also means that
the measures do not have the same legal certainty as if they were set forth in a law
enacted by parliament. In any case, the ordinances, strategies or information sheets
have to be based on regulation on the protection of the environment currently in
force and need to be in accordance with those existing acts.
4.5 Enforcement
The outlined laws and ordinances—whether they make use of incentive or repres-
sive measures such as bans or binding requirements—are ineffective if their
enforcement is not ensured. A brief—and by no means comprehensive—overview
of the provisions aiming at the implementation of the agri-environmental goals will
complete Sect. 4. Most of the acts outlined above contain provisions on enforce-
ment. Thus, the Act on Agriculture states that the positive incentives in the form of
direct payments can be reduced or withdrawn if the applicant does not comply with
the provisions of the legislation on the protection of waters, the environment or
animal welfare (art. 170(2bis) AgricA).95 The Environmental Protection Act sets
forth rules on liability (art. 59a et seqq. EPA), as well as criminal provisions (art.
60 et seqq. EPA). Criminal provisions are also put down in the Water Protection Act
(art. 70 et seqq. WPA). Finally, the control of compliance with the provisions is in
general also regulated in the respective acts. By way of example, art. 181(1) AgricA
gives the authorities the necessary competence for taking the control measures
required for the implementation of the act and its implementing provisions. The
provision is further specified in an ordinance on the control on farms.96
5 International Influences
So far, we have left out the question as to what degree the interplay of agricultural
policy and constitutional basis and the subsequent concretisation of this interaction
on the more prosaic level of laws and decrees are subject to international influences.
Switzerland is a small country; it is situated in the heart of the EU without being a
member state, and its economy relies heavily on imports and exports. These factors
94
For an overview of the changes, see Norer and Wasserfallen (2010), p. 37; Norer and
Wasserfallen (2011), p. 33; Norer and Wasserfallen (2012), pp. 58 et seqq.
95
The income of Swiss farmers heavily depends on direct payments; see OECD (2015), p. 13. The
provision is therefore of undeniable significance.
96
Verordnung über die Koordination der Kontrollen auf Landwirtschaftsbetrieben vom 23.
Oktober 2013 (VKKL), SR 910.15.
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may influence the legislation of the country, which is why the pertinent public
international law on environmental protection, international trade law and the
relations with the EU are to be examined with regard to possible influences on
Swiss agri-environmental regulation.
5.1 Public International Law on Environmental Protection
An evident place to start looking for international influences on Swiss agri-

environmental goals is public international law on environmental protection.
Since there is no specific treaty on environment in the context of agriculture, the
general international environmental law is of relevance.97
With several non-binding sources at its roots, for instance the Rio Declaration on
Environment and Development, the effects of international environmental law on
domestic law are often subtle, e.g. by raising awareness not just in society but also
in the government and in lawmakers. As to the concept of sustainability, for
example, it is often argued that it lacks the necessary degree of normativity and
that it is thus not legally binding for states,98 which therefore are not obligated to
enact domestic law for the implementation of international environmental targets.
Nonetheless, with environmental protection in the context of sustainable develop-
ment forming part of various soft law documents, this all the same hints at its
function as a guideline (and not yet as a legal principle).99 There are, however,
indications that it is on the way to becoming a principle of customary international
law.100 The fact that numerous states have adapted constitutional norms on sus-
tainability hints at a possible development towards the binding character of this
principle,101 which would strengthen the impact of international environmental law
and its implementation on domestic level in general.
In Swiss environmental law, there are examples for both the influence of soft law
as well as the direct effect of binding international legal instruments. Thus, the legal
discussions on international level concerning the importance of the concept of
sustainability clearly had an impact on the incorporation of this principle into the
Swiss Constitution. As seen above (Sect. 3.1), the provision on agriculture first
included the principle of sustainability on the constitutional level. In the explana-
tory statement dating from 1996 outlining the draft of the new article, the Federal
Council explicitly referred to Agenda 21,102 adopted at the occasion of the United
97
For a general overview of international environmental law, see Nanda and Pring (2013); for the
Swiss perspective Griffel (2001); Jositsch (1997).
98
See Keller and von Arb (2006), p. 463 with further references.
99
Cf. Keller and von Arb (2006), p. 439.
100
Cf. Vallender (2014), note 5 with further references.
101
Cf. Keller and von Arb (2006), pp. 465 et seqq. The authors, however, remain sceptical.
102
Bundesrat (1996), pp. 16 et seqq.
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Nations Conference on Environment and Development in Rio de Janeiro in 1992.

The Federal Council concluded that agriculture needed to contribute to the active
prevention of ecologically detrimental developments by the necessary changes of
the law.103 Since then, Swiss agricultural policy has pursued a strategy of slowly
but steadily introducing regulation targeting more environment-friendly practices
in agriculture (see above, Sect. 2).
Next to the influence of international soft law on Swiss law, Switzerland has also
ratified binding international instruments. The Convention on the conservation of
European wildlife and natural habitats (Bern Convention)104 is one example of
international environmental law that directly influences Swiss domestic law. By
ratifying the treaty, Switzerland committed to promoting national conservation
policies and considering the impact of planning and development on the natural
environment (art. 3 Bern Convention). Certain laws for the implementation of the
policies were already in force at the time of the ratification (e.g., the Environmental
Protection Act105); certain acts were amended upon the adoption of the Bern
Convention. Agricultural law—namely the Act on Agriculture, the Ordinance on
Direct Payments106 and the Ordinance on Plant Protection107—also contains pro-
visions aiming at implementing the Bern Convention,108 for instance pertaining to
the protection of plant material from particularly dangerous harmful organisms (art.
149(2) AgricA, Ordinance on Plant Protection).
Those few examples—which are by no means exhaustive—illustrate that Swiss
agricultural law is no stranger to influences from international environmental law,
even if the source is not legally binding, but has the character of soft law. As seen
above, the domestic regulation has in turn an impact on agricultural practices. The
general provisions thus compensate the lack of a direct source for international law
governing environmental protection in agriculture—of course provided that they
are actually implemented in domestic law.
5.2 International Trade Law
Switzerland’s economy is highly dependent on trade, so naturally, developments in

international trade law are of relevance for the small country. When it comes to
103
104
Convention on the Conservation of European Wildlife and Natural Habitats (Bern Convention),
SR 0.455.
105
Federal Act on the Protection of the Environment (Environmental Protection Act EPA), SR
814.01.
106
Art. 2(e) Verordnung über die Direktzahlungen an die Landwirtschaft vom 23. Oktober 2013
(Direktzahlungsverordnung DZV), SR 910.13.
107
Verordnung über Pflanzenschutz vom 27. Oktober 2010 (Pflanzenschutzverordnung PSV), SR
916.20.
108
Cf. Untermaier (2011), p. 7.
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steps towards a greater trade liberalisation in the context of the WTO, the high level
of subsidisation put Switzerland in a tricky position during the negotiations for the
GATT.109 Trade liberalisation, especially in the agricultural sector, was viewed
very critically. The official negotiation policy thus strictly opposed a too
far-reaching liberalisation and cited ecological concerns because opening the mar-
kets would endanger agriculture’s multifunctional tasks.110 This argumentation is
somewhat paradoxical since the interests of environmental protection had been
included in agricultural regulation only very reluctantly (see above, Sect. 2) but
then served as a justification for an inhibitive position concerning the opening of
agricultural markets.
WTO law does not contain direct provisions on environmental protection. The
more specific Agreement on Agriculture mentions the environment only in its
preamble, noting that commitments with regard to non-trade concerns such as the
protection of the environment should be made in an equitable way among all
members. With its provisions on subsidies, domestic support exceeding the reduc-
tion commitment levels in the so-called amber box is prohibited (art. 6 Agreement
on Agriculture). Although there is no direct obligation to provide for
environmental-friendlier agricultural practices, these provisions nonetheless had
an influence on the development of Swiss agricultural policy. As seen above (Sect.
2), agricultural policy gradually gave up market and production measures, separat-
ing pricing policy and income policy (decoupling). Instead, direct payments, which
aimed at the compensation of services of public interest provided by agriculture
such as the protection of the environment, were introduced. Once the WTO
Agriculture Agreement negotiated in the 1986–1994 Uruguay Round had come
into effect, the legislator checked each change of legislation possibly falling under
the scope of the amber box very thoroughly and tried to tailor amendments in a way
to comply with the provisions of the green box.111 This means that domestic support
must not be directed at particular products but can include direct income supports
for farmers as long as they are decoupled from production levels or prices.
Direct payments in Switzerland are a highly political decision; farmers’ incomes
are heavily dependent on them, which is why in the foreseeable future the
subsidisation of Swiss agriculture will continue. At the same time, Switzerland
seems eager to comply with WTO law that calls for compliance with the green box
wherever and whenever possible. This in turn favours decoupled domestic support
measures. Finally, decoupling promotes more environment-friendly production
methods. In conclusion, a certain—if only indirect—influence of the Agreement
on Agriculture on Swiss agricultural policy and its agri-environmental goals may be
assumed.
109
General Agreement on Tariffs and Trade, SR 0.632.21.
110
111
Cf. e.g. Bundesrat (2012), pp. 2321 et seqq. Elaborating on the accordance of the latest
amendments of the direct payment system with WTO law.
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5.3 Influences of EU Law?
The main share of Swiss exports goes to members of the European Union; the main
amount of imports stems from EU member states. This makes the EU Switzerland’s
most important trading partner with whom Switzerland has concluded several
bilateral treaties. Concerning agriculture, there are mainly three agreements: the
free trade agreement from 1972,112 the Bilateral Agricultural Agreement I113 and
the Bilateral Agricultural Agreement II.114 In short, the agreements obligate the
contracting parties to abandon trade barriers for a few agricultural products; the
scope of application of the products concerned was extended gradually. The
narrowly defined range of products concerned is a witness to the fact that a full
liberalisation of trade of agricultural goods was not intended, the only exception
being cheese, where trade is fully liberalised (Annex 3 sec. 1 Bilateral Agricultural
Agreement I) since 2007.115 There are, however, no provisions on environmental
protection in any of the agreements. Apparently, environmental concerns are not of
predominant relevance in international trade law. The lack of environmental pro-
visions in free trade agreements, however, does not necessarily mean that ecolog-
ical improvements would be hindered: the OECD concludes that a further
liberalisation by market integration with the EU would in any case benefit the
achievement of Swiss agri-environmental objectives due to lower domestic com-
modity prices, which would lead to an overall decrease of production, which would
in turn have a positive impact on the environment.116
Although WTO law seems to have a certain yet indirect influence on Swiss agri-
environmental targets, trade law between the EU and Switzerland in this case does
not impact said targets. This may come as a surprise given the importance of EU
law in Switzerland. Even though Switzerland is not member of the EU, its export-
oriented economy calls for compliance with relevant EU law. In addition to the
existing treaties between Switzerland and the EU, this often leads to the voluntary
compliance with EU law or even the unilateral adoption of EU law in Switzer-
land.117 The incentives to adopt agri-environmental measures—be it unilaterally or
based on a treaty—in the context of the influence of the EU, however, does not
112
Agreement between the European Economic Community and the Swiss Confederation, SR
0.632.401.
113
Agreement between the European Community and the Swiss Confederation on trade in
agricultural products, SR 0.916.026.81.
114
Agreement between the European Community and the Swiss Confederation amending the
Agreement between the European Economic Community and the Swiss Confederation concerning
the provisions applicable to the processed agricultural products, SR 0.632.401.23.
115
Particularly not in Switzerland; recent initiatives towards a further liberalisation initiated by the
government were discussed controversially and opposed in parliament. According to the Swiss
legislator, there will not be a free trade agreement on agricultural goods between the EU and
Switzerland in the foreseeable future.
116
Cf. OECD (2015), pp. 90 et seqq.
117
So-called autonomous implementation/adoption or, sometimes, voluntary/unilateral alignment.
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seem strong enough: there is neither a provision in a treaty nor an economic

incentive to comply unilaterally with EU environmental law. The main reason
behind this is likely to be an economic one: Switzerland’s agricultural sector is
heavily subsidised; its market is protected, which means that Swiss farmers are
generally against free trade fearing the competition from lower market prices of
imported agricultural goods.
This, however, does not have to mean that there is no influence of EU law on
Swiss agri-environmental protection altogether. As stated above, the importance of
EU law in Switzerland is undeniable.118 Apart from compliance with EU law for the
sake of trade concerns, the question remains if Switzerland also compares its legal
solutions with those applied by the EU as its direct neighbour. By way of example,
the regulation of direct payment systems and its ecological components will be
examined hereafter. If compared, the direct payment systems in Switzerland and the
EU, for instance, bear certain resemblances: there exists a parallel legal instrument
in Switzerland for almost every instrument contained in the second pillar of the
CAP.119 Environmental requirements for direct payments—manifesting itself in the
Swiss proof of ecological performance and in the European regulation of cross-
compliance—were first introduced in Switzerland in 1999, whereas the EU
followed in 2005.120 The introduction was somewhat more suave in Switzerland
since the previously allocated direct payments for particularly ecological public
services provided by agriculture were already broadly respected before they were
made compulsory for every type of direct payment.121 In the EU, cross-compliance
requirements were considered as incisive at the moment of their implementation
since they had not evolved gradually as in Switzerland.122
As regards content, Switzerland’s proof of ecological performance has evident
parallels to cross-compliance in the EU. There are, however, some fundamental
differences.123 Cross-compliance signifies that in order to receive direct payments,
the applicant needs to comply with requirements whose goals are not congruent
with the goals of the direct payment itself. In other words, direct payments
compensate public services produced by agriculture as positive external effects;
cross-compliance, on the other hand, protects public goods such as water or the air
from negative external effects caused by agriculture.124 Switzerland’s system of
118
Every intended change of legislation has to be examined as to its compatibility and relationship
with EU law, art. 141 (2)(a) Federal Act on the Federal Assembly of 13 December 2002
(Parliament Act ParlA), SR 171.10. Cf. Wyss (2007), pp. 717 et seqq.
119
Norer (2011), p. 247.
120
Monpion (2013), pp. 125 et seqq gives an overview of the development of the second pillar of
the CAP in the context of environmental requirements.
121
On the adoption of the direct payments for particularly ecological public services—previously
voluntary conditions—as the henceforth underlying principle for all direct payments in the form of
the proof of ecological performance, see Bundesrat (1996), p. 203.
122
Norer (2011), p. 254.
123
Hofer (2011b), p. 53.
124
Hofer (2011b), p. 52.
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direct payments includes an element of direct compliance: the requirement to set

aside an adequate proportion of land for biodiversity is a direct claim to provide a
service of public interest.125 In contrast to Switzerland, the EU included veterinary
and food law in its cross-compliance. Furthermore, in Switzerland—other than in
the EU—it is not the authorities that need to prove that cross-compliance conditions
were not met; the burden of proof is on the applicant, who has to produce evidence
that he/she fulfils the proof of ecological performance.126 The similarities hint at the
probability of mutual inspiration for drafting legislation in agricultural law. How-
ever, the parallel emergence of the environmental problems caused by the focus on
production and the simultaneousness as to when those problems occurred127 (see
above, Sects. 2.2 and 2.3) did not lead to the common search for solutions. There is
no evidence of any direct influence of EU legislation on agri-environmental goals
other than as a possible source of inspiration.
5.4 Future Developments and Influences
International law and treaties do not provide binding agri-environmental goals.

Switzerland’s reluctance to conclude trade agreements on agriculture and the trade
of agricultural goods shields Swiss agriculture from the international free trade. The
negotiations and the prospective adoption of the Transatlantic Trade and Invest-
ment Partnership (TTIP) between the EU and the USA do not concern Switzerland
directly. It will not be a treaty member. However, situated at the heart of Europe, the
TTIP will impact Switzerland as well.128 The Federal Council has commissioned a
detailed evaluation of the option for Switzerland in case of a successful conclusion
of the TTIP between the negotiating parties. The experts examined several scenar-
ios with varying degrees of a Swiss integration (among others, the option of a
parallel treaty between the European Free Trade Association (EFTA)—where
Switzerland is a member state—and the US).129 The Federal Council is considering
negotiating a status as an associated state to the TTIP.130
125
Hofer (2011b), p. 52.
126
See Hofer (2011a, b), p. 53.
127
For the situation in the EU, cf. Monpion (2013), pp. 41 et seqq.
128
Three options are being discussed in parliament: comply with TTIP law unilaterally in order to
ensure market access, negotiate a status as associated state or increase the protection of domestic
agriculture by raising direct payments and tariff barriers, cf. Parliamentary Interpellation 14.3111;
Parliamentary Postulate 14.3314; Parliamentary Interpellation 14.3395; Parliamentary Interpella-
tion 143,399; Parliamentary Interpellation 14.3622; Parliamentary Question 14.5551; Parliamen-
tary Postulate 14.4186.
129
Cf. Cottier et al. (2014).
130
Parliamentary Interpellation 14.3111; Parliamentary Interpellation 14.3399; Parliamentary
Interpellation 14.3622.
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Potentially, the competition for low production prices will increase, and so will
the pressure on lowering production costs. This might have detrimental effects on
ecological production standards since the focus will be on increasing production. A
careful liberalisation by market integration with the EU or agricultural free trade
agreements could benefit the achievement of Swiss agri-environmental objectives
due to lower domestic commodity prices, which would lead to an overall decrease
of production, which would in turn have a positive impact on the environment.131
6 Conclusion
The progress that the OECD report attests, i.e. Switzerland’s agricultural policy
achieving a significant improvement as regards environmental performance, is not a
coincidence. It is the result of several decades of gradual development and advance-
ment of agricultural policy, which in turn led to the necessary adoption or amend-
ment of pertinent laws and legal instruments of regulation. Historically, the
awareness for the necessity of change started growing in the 1970s and 1980s,
when the first detrimental impacts of an agricultural policy driven by the single goal
of production surfaced, e.g. in the form of surpluses, erosion and water pollution.
The most important change of policy occurred in the 1990s, when the focus shifted
from production towards more environment-friendly farming methods by separat-
ing pricing policy and income policy. Financial aids for farmers did not solely
depend on the amount of produced goods any longer; direct payments targeted the
compensation of public services. New requirements aiming at a more environment-
and livestock-friendly agriculture were introduced; additional voluntary steps
towards ecologic production were remunerated by direct payments. This eventually
led to the introduction of the so-called proof of ecological performance (a form of
cross-compliance) in 1999. The current agricultural policy for the years 2014–2017
further reduces the links between financial aids and production by diminishing the
incentives for the intensification of livestock production.132
The changes and improvements were made possible by the introduction of new
regulation aiming at implementing the measures that these changes demanded. For
this purpose, the constitutional provision on agriculture had to be amended in order
to make subsidisation for ecological targets legal, where before financial aids were
oriented towards the purely economic aim of enhancing production. The integration
of constitutional provisions on environmental protection also played an important
role and affected agriculture insofar as new requirements it had to meet came into
force. There is no clear legal definition of the agri-environmental targets. However,
the laws and ordinances mirror the developments aiming at the improvement of
environmental performance of Swiss agriculture. They further concretise the
131
OECD (2015), pp. 90 et seqq.
132
See Sect. 2.
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politically and constitutionally intended direction of impact, be it by introducing

positive incentives for an environment-friendlier production or by providing restric-
tive regulation to prevent or repair damages caused by agriculture as a potential
polluter.133 Switzerland mainly uses binding regulation as well as direct payments
in order to increase the incentives to comply with the environmental regulation.
What does this mean for the future? There is a standstill after two decades of
strengthening the greening process in Swiss agriculture; the latest agricultural
policy (Agricultural Policy 2014–2017) perpetuates the status quo. Furthermore,
there is no pressure to change this situation since there is no important international
framework or trade law to comply with.
On an international level, there is significantly less regulation to be observed
when it comes to public environmental law. Switzerland has ratified a few treaties
such as the Bern Convention, obligating the state to implement the agreed-upon
targets, which it has done by the laws and regulations laid out in this article that
were enacted over time. During the legislation process, the lawmakers certainly
took and take note of soft law such as Agenda 21, which serves as a source of
inspiration. The same is possible for legislation of the EU, Switzerland’s direct
neighbour. The direct payment systems, for instance, are similar, although Swit-
zerland has introduced cross-compliance 6 years before the EU did. Trading
interests only play a minor role. This is only counterintuitive at a first glance.
First of all, there are no provisions on environmental goals in the existing agree-
ments on agriculture. Second, although the EU is Switzerland’s most important
trading partner, trade in agricultural goods is still far from being liberalised.
Therefore, there is no reason to adopt environmental requirements unilaterally or
to make sure that domestic payments target ecological improvements due to the
lack of provisions like the green box criteria according to the GATT.134
The international law might soon have a bigger impact on Switzerland with the
current discussions concerning the TTIP. Switzerland might be compelled to lower
the protection of its domestic agriculture and carefully open up to trade
liberalisations. These changes could be for the better if commodity prices go
down and lead to a decrease of production, which would in turn have a positive
impact on the environment. The changes, however, are for the worse if there is a
significant increase in production in order to compete with the international com-
petitors. Switzerland’s lawmaker would then see itself compelled to either fully
liberalise the agricultural market or—more likely—increase the protection of Swiss
agriculture by raising tariff barriers and direct payments. The latter will only have a
positive impact on the environment if the ecological direct payments are favoured
and GATT green box compliance is assured.
It is unclear which option Switzerland will choose. Agriculture is at the interface
of various concerns and stakeholders. To name but a few, agricultural activities
influence the natural environment; at the same time, food production is paramount
133
See Sects. 3 and 4.
134
See Sect. 5.
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for food security; and finally, the produced goods are subject to trade and economic
concerns. All of these expectations that are placed on agriculture lead to different,
often conflicting requirements and regulations that it has to fulfil. Agriculture is
literally expected to be multifunctional. Implementing agri-environmental targets
therefore means finding a way to balance opposing concerns and minimise frictions
that occur between the different roles of agriculture. It is thus a precondition to
build a political will and to find the required majorities to further improve the
environmental performance of agriculture by making the necessary legal amend-
ments or enacting new legislation. This means that the definition of agri-
environmental goals is necessarily in flux. This, however, leads us back to the
different stakeholders: from an ecological standpoint, it is hoped that the definition
of agri-environmental targets will be held up and expanded, whereas farmers
traditionally tend to be more critical when it comes to additional requirements
that they have to meet in their daily work and agricultural production. From a legal
perspective, controversial discussions will keep surfacing in times of pollution of
the environment, a growing Swiss population calling for food and an increasingly
globalised agricultural trade market.
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Brunner A (2002) Bodenschutz, Stoffe und Gewässerschutz: Landwirtschaft im Spannungsfeld.
URP/DEP 6:523–551
Bundesamt für Landwirtschaft, Bundesamt für Umwelt (2008) Umweltziele Landwirtschaft,
Hergeleitet aus bestehenden rechtlichen Grundlagen. Umweltwissen, Bern
Bundesrat (1956) Bericht des Bundesrates an die Bundesversammlung über die
Landwirtschaftspolitik des Bundes und die Lage der schweizerischen Landwirtschaft vom
31. Januar 1956. In: BBl, pp 324 et seqq
Bundesrat (1959) Zweiter Bericht des Bundesrates an die Bundesversammlung über die Lage der
schweizerischen Landwirtschaft und die Landwirtschaftspolitik des Bundes vom 29.
Dezember 1959. In: BBl, pp 201 et seqq
Bundesrat (1965) Dritter Bericht des Bundesrates an die Bundesversammlung über die Lage der
schweizerischen Landwirtschaft und die Agrarpolitik des Bundes vom 10. Dezember 1965. In:
BBl, pp 425 et seqq
Bundesrat (1969) Vierter Bericht des Bundesrates an die Bundesversammlung über die Lage der
schweizerischen Landwirtschaft und die Agrarpolitik des Bundes vom 26. Februar 1969. In:
BBl, pp 389 et seqq
Bundesrat (1976) Fünfter Bericht über die Lage der schweizerischen Landwirtschaft und die
Agrarpolitik des Bundes vom 22. Dezember 1976. In: BBl, pp 242 et seqq
Bundesrat (1984) Sechster Bericht über die Lage der schweizerischen Landwirtschaft und die
Agrarpolitik des Bundes vom 1. Oktober 1984. In: BBl, pp 469 et seqq
Bundesrat (1992a) Siebter Bericht über die Lage der schweizerischen Landwirtschaft und die
Agrarpolitik des Bundes vom 27. Januar 1992. In: BBl, pp 130 et seqq
Bundesrat (1992b) Botschaft zur Änderung des Landwirtschaftsgesetzes, Teil I: Agrarpolitik mit
ergänzenden Direktzahlungen. In: BBl, pp 1 et seqq
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Bundesrat (1996) Botschaft zur Reform der Agrarpolitik: Zweite Etappe (Agrarpolitik 2002). In:
BBl, pp 1 et seqq
Bundesrat (2002) Botschaft zur Weiterentwicklung der Agrarpolitik (Agrarpolitik 2007). In: BBl,
pp 4721 et seqq
Bundesrat (2006) Botschaft zur Weiterentwicklung der Agrarpolitik (Agrarpolitik 2011) vom 17.
Mai 2006. In: BBl, pp 6337 et seqq
Bundesrat (2011) Parlamentarische Initiative Flexibilisierung der Waldflächenpolitik, Bericht der
Kommission für Umwelt, Raumplanung und Energie des Ständerates vom 3. Februar 2011. In:
BBl, pp 4397 et seqq
Bundesrat (2012) Botschaft zur Weiterentwicklung der Agrarpolitik in den Jahren 2014-2017
(Agrarpolitik 2014-2017) vom 1. Februar 2012. In: BBl, pp 2075 et seqq
Cottier T et al (2014) Potential impacts of a EU-US Free Trade Agreement on the Swiss economy
and external economic relations. World Trade Institute, University of Bern, Bern
Ehrenzeller B et al (eds) (2014) Die Schweizerische Bundesverfassung, St. Galler Kommentar, 3rd
edn. Schulthess, Zürich and St. Gallen
Errass C (2014) Art. 80. In: Ehrenzeller B et al (eds) Die Schweizerische Bundesverfassung,
St. Galler Kommentar, 3rd edn. Schulthess, Zürich and St. Gallen, pp 1615 et seqq
Griffel A (2001) Die Grundprinzipien des schweizerischen Umweltrechts. Schulthess, Zürich
Hettich P et al (eds) (2016) Kommentar zum Gewässerschutzgesetz und zum Wasserbaugesetz.
Commentaire de la loi sur la protection des eaux et de la loi sur l’aménagement des cours
d’eaux. Schulthess, Zürich and St. Gallen
Hofer E (2011a) Die Landwirtschaft und die Anforderungen an deren nachhaltige Entwicklung.
BLAGR 3:3–53
Hofer E (2011b) Aktuelle Direktzahlungssysteme: Schweiz. In: Roland N (ed) Agrarische
Direktzahlungen – rechtliche Aspekte in Konzeption und Vollzug, Tagungsband der
2. Luzerner Agrarrechtstage. Dike, Zürich and St. Gallen, pp 45 et seqq
Jositsch D (1997) Das Konzept der nachhaltigen Entwicklung (Sustainable Development) im
V€olkerrecht und seine innerstaatliche Umsetzung. URP 11:93–121
Keller H, von Arb C (2006) Nachhaltige Entwicklung im V€ olkerrecht: Begriff – Ursprung –
Qualifikation. URP 5:439–470
Marti A (2014) Art. 76. In: Ehrenzeller B, Schindler B, Schweizer RJ, Vallender KA (eds) Die
Schweizerische Bundesverfassung, St. Galler Kommentar, 3rd edn. Schulthess, Zürich and
St. Gallen, pp 1557 et seqq
Maurer H (1995) Naturschutz in der Landwirtschaft als Gegenstand des Bundesrechts. Unter
besonderer Berücksichtigung der Meliorationen. Schulthess, Zürich
Maurer H (1999) Umweltschutz, Naturschutz und Tierschutz im neuen Landwirtschaftsrecht.
URP/DEP 13(5):388–418
M€ockel S (2006) Umweltabgaben zur Ökologisierung der Landwirtschaft. Duncker & Humblot,
Berlin
Monpion A (2013) Le principe pollueur-payeur et l’activité agricole dans l’Union européenne.
Schulthess, Basel
Morell R, Vallender KA (2014) Art. 74. In: Ehrenzeller B, Schindler B, Schweizer RJ, Vallender
KA (eds) Die Schweizerische Bundesverfassung, St. Galler Kommentar, 3rd edn. Schulthess,
Zürich and St. Gallen, pp 1503 et seqq
Nanda VP, Pring G (2013) International environmental law and policy for the 21st century, 2nd
edn. Brill, Leiden
Noe EB, Alroe HF (2015) Regulation of agroecosystems: a social systems analysis of agroecology
and law. In: Monteduro M, Buongiorno P, Di Benedetto S, Isoni A (eds) Law and agroecology
– a transdisciplinary dialogue. Springer, Heidelberg, pp 31–46
Norer R (2011) Direktzahlungssystem Schweiz – EU: Konvergenz und Divergenz. In: Norer R
(ed) Agrarische Direktzahlungen – rechtliche Aspekte in Konzeption und Vollzug,
Tagungsband der 2. Luzerner Agrarrechtstage 2010. Dike, Zürich and St. Gallen, pp 231 et
seqq
152 C. Preisig
Norer R, Wasserfallen A (2010) Agrarrecht, Entwicklungen 2011. Stämpfli, Bern

OECD (2015) Review of agricultural policies: Switzerland 2015. OECD, Paris
Ott K, D€oring R (2008) Theorie und Praxis starker Nachhaltigkeit, 2nd edn. Metropolis Verlag,
Marburg
Popp HW (2011) Der Weg zu den Direktzahlungen der Schweizer Agrarreform 1992. In: Norer R
(ed) Agrarische Direktzahungen – rechtliche Aspekte in Konzeption und Vollzug,
Tagungsband der 2. Luzerner Agrarrechtstage 2010. Dike, Zürich and St. Gallen, pp 17 et seqq
Rausch H (2001) Umwelt und Raumplanung. In: Thürer D, Aubert JF, Müller JP (eds)
Verfassungsrecht der Schweiz. Schulthess, Zürich, pp 915 et seqq
Richli P (2005) Wirtschaftsstrukturrecht unter besonderer Berücksichtigung des Agrar- und
Filmwirtschaftsrechts. Helbing & Lichtenhahn, Basel, Geneva, and Munich
Schmid T (2002) Landwirtschaft im Clinch mit dem Umweltschutzrecht. URP/DEP 6:499–522
Untermaier J (2011) Rapport sur la mise en œuvre de la Convention de Berne en Suisse. In:
Standing Committee, 31st meeting 2011
Vallender KA (2014) Art. 73. In: Ehrenzeller B, Schindler B, Schweizer RJ, Vallender KA (eds)
Die Schweizerische Bundesverfassung, St. Galler Kommentar, 3rd edn. Schulthess, Zürich and
St. Gallen, pp 1483 et seqq
Vallender KA, Hettich P (2014) Art. 104. In: Ehrenzeller B, Schindler B, Schweizer RJ, Vallender
KA (eds) Die Schweizerische Bundesverfassung, St. Galler Kommentar, 3rd edn. Schulthess,
Zürich, St. Gallen, pp 1911 et seqq
Wyss MP (2007) Europakompatibilität und Gesetzgebungsverfahren im Bund. AJP/PJA
6:717–728
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Part II
Emerging Consumers’ Interests: Answers
from the Agri-Food Regulation
The Emerging Interests of Consumers:
Answers from the Agri-Food Regulation
Vito Rubino
1 Introduction
The increasing role of consumers in determining trade trends and market prospects
is one of the most characteristic hallmarks of the recent evolution of international
trade.
Their grown capacity for searching for information has increased a critical
approach to markets and to the ethical models of production.
At the same time, the global resonance of many scandals has given rise to
concerns and new needs for security that is strictly related to the transnational
structure of production chains and the loss of the territorial dimension of
manufacturing.
In this way, an apparent contrast has emerged between the idea of “tradition,”
intended as knowledge handed down over time about know-how and its anthropo-
logical and cultural reflections, and “innovation,” intended as introduction of new
technologies or exploitation of imported know-how from different countries.
In reality, a closer look shows that the contradiction is more apparent than real as
it is exaggerated in common perception by the extreme conciseness of information
in the social-network era.1
It may appear obvious to state that traditions were the result of attempts made in
a distant past to improve products and manufacturing processes. We can therefore
assume that traditions themselves in some way stem from successful innovations
(frequently in the technological or process field).
1
See on this point Keim et al. (2014), Zuckerman (2013), Bolisani (2008), Fabris (2007) and
Heim (1998).
V. Rubino (*)
Department of Law, Political Science, Economics and Social Sciences, University of Eastern
Piedmont, Alessandria, Italy
e-mail: vito.rubino@uniupo.it

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156 V. Rubino
The relevance of the contamination or circulation of knowledge (a characteristic

element of innovation) and the subsequent improvement of cultural heritage with
regard to specific products and production methods are equally clear: an ante
litteram globalization brought foods such as oranges (imported for the first time
from China by Portuguese merchants during the fourteenth century) and tomatoes
(imported from America with many other vegetables during the sixteenth century)
to Europeans, and these soon became an essential part of the Mediterranean
gastronomic culture.
Furthermore, before the enlargement of the boundaries of the “old world,” trade
exchanges promoted by the infrastructural network created by the Romans gener-
ated a fruitful contamination between peoples and cultures across the Mediterra-
nean sea and toward Asia, with an evident effect in terms of traditions, cultures, and
the evolution of production methods.
All these considerations may appear obvious in a general context, but from a
juridical point of view globalization still represents a complex issue.
Legal rules, in fact, tend to be conservative, and therefore they are not usually a
factor in promoting growth in economic development.
The juridical regulation of commercial and personal relationships is based on
repeated behaviors over time, the need to transform them as mandatory rules for the
general interest and with a certain caution with regard to sudden modifications of
the “status quo.”
The increased importance of science today makes this tendency of the law more
rigid, given that many juridical constructions and rules are based on a scientific
approach that allows a balance between opposite interests: in order to change the
rules, both public opinion concerning the usefulness of the modification and the
existence of assumptions that require the modification of the previous discipline are
fundamental.
In this way, the accelerated movement toward innovation, caused by the over-
whelming progress of knowledge in recent decades, conflicts with the approach of
legal systems to social problems, which is conservative by necessity (or, better,
precautionary), since the general concerns connected to the speeding up of techno-
logical production processes make it difficult to foresee the long-term effects of
innovations on human health and the environment.
2 Emerging Questions and Agri-Food Answers
In the framework described, the agri-food sector represents a perfect scenario in

which we can measure these trends and their economic and juridical consequences
since it covers all the fundamental juridical assets: consumer health, the environ-
ment, protection of the cultural identities, the ethical impact of specific production
methods, and fairness in distribution in the context of the progressive dematerial-
ization of commercial relationships.
The Emerging Interests of Consumers: Answers from the Agri-Food Regulation 157
The use of insects as new sources of nutrients in diet and natural agents in
integrated pest management is a relevant example of the difficulty in finding
juridical solutions to balance the opening of markets to innovative foods and the
consumer concerns and expectations.2
For many people, insects are a traditional component of their diet, not only in
“exotic” contexts3 but also in the Mediterranean culture, as shown by some biblical
passages.4
Their consumption, therefore, can be included in demonstrated traditions that
legitimate their circulation as generic foods.5
Nonetheless, in the European Union, the question is still open both from the food
safety point of view and the environmental impact of their use and breeding.
As Valeria Paganizza underlines in her essay “Insects in agriculture: traditional
roles and beyond,” the juridical framework is fragmented considering the lack of a
common reference to insects as a food or feed at the international level. The
European Union considers insects as novel food because they have not been used
for human consumption to any significant degree within the Community before
May 15, 1997. So they have to undergo an assessment procedure before being
placed on the EU market.
The author raises questions about the apparent conflict between the juridical
classification as “novel food” and their traditional consumption in many countries.
She highlights that the interruption (or the absence) of a repeated consumption over
time can determine the loss of the ability to absorb specific nutrients or the
possibility of adverse reactions.
So the European food law identified the solution to this conflict of interests in the
precautionary approach of prior assessment, imposed by EU Regulation 2283/2015,6
with a significant exception for food considered “traditional” in their countries of
origin, intended as products with safe food use for at least 25 years, demonstrated by
the applicant as a part of the customary diet of a significant number of people.
In this case, the procedure is limited to a notification with a possible later
evaluation only in case of opposition by a Member State or the European Food
Safety Authority.
The globalization of production raises regulatory problems also with regard to
the ethical side in areas with a lower level of regulation.
2
See Paoletti (2005).
3
See Montanari and Sabban (2006) and Foliart (1999). It has been noted that the Aztechs made use
of insects both for ceremonial occasions and as ordinary food see Costa-Neto (2003).
4
See The Holy Bible, Book of Leviticus, 11, 9–10. For a wider analysis of the impact of
Christianity on food consumption see Montanari (2015).
5
See Huis et al. (2013).
6
See the Regulation (EU) 2015/2283 of the European Parliament and of the Council of
25 November 2015 on novel foods, amending Regulation (EU) No 1169/2011 of the European
Parliament and of the Council and repealing Regulation (EC) No 258/97 of the European
Parliament and of the Council and Commission Regulation (EC) No 1852/2001, OJ [2015] L
327/1.
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158 V. Rubino
Dyane Ryland in her essay dedicated to “Animal Welfare Standards in Agricul-

ture: Drivers; Implications; Interface?” reflects on the increasing role of soft law in
the animal welfare sector.
The transnational extension of private standards, the lack of transparency in
mechanisms of adoption of these schemes, and the absence of a democratic control
on the subjects who prepare them (mostly an expression of the scientific commu-
nity, by definition beyond political control) actually poses the problem of the link
between public rules and private norms, due to the increasing complexity of reality.
The author, in this regard, underlines that the European Union and the Member
States cannot “outsource” their responsibilities for ensuring enhanced animal
welfare standards in the agri-food chain, raising questions about the boundaries
between public responsibilities and the role of private bodies.
The balance between health protection, economic freedom, and consumer right
to self-determination is the focus of Sara Berger Richardson’s remarks in her
dissertation “Pluralism and the regulation of raw milk sales in Canada: creating
space for multiple normative orders at the food policy table.”
Against the background of the debate on the Canadian prohibition of raw milk
sales, the unresolved question of juridical paternalism takes shape, that is, the
adoption of mandatory rules in order to guarantee a wider consumer protection,
and the identity of the “consumer,” increasingly intended as a person without
sufficient knowledge to make a free and safe choice of products on the market.
The raw milk movement represents, in this respect, the expression of the
resilience of consumers, who want to be the protagonists of their own choices.
This approach could give rise to a new economic model based on an increased
ecological, ethical, and social sensitivity, intrinsically connected to the “multilevel”
nature of the protection of fundamental rights.
Finally, Silvia Rolandi, in her paper “Food e-commerce: the European frame-
work for Business to Consumer regulation and possible critical issues,” concludes
the chapter dedicated to the relationship between tradition, new technologies, and
consumer interests in the agri-food perspective with an analysis of the impact of
e-commerce on consumer rights, with specific regard to the regulation of consumer
contractual relationships in the globalized market.
The consumer scenario is nowadays totally globalized, and the possibility of
concluding a contract with a professional based on a different legal order poses
inevitably the problem of the protection of consumer rights in these relationships.
The rules adopted by the European Union on consumer protection highlights not
only the extreme sensitivity regarding this topic but also the currently unsatisfac-
tory situation.
All the various provisions in terms of applicable law, jurisdiction, and consumer
contractual protection are seriously devalued by the lack of an “ex officio” execu-
tion mechanism of sentences that give a consumer a financial compensation.
This situation very often makes it impossible de facto to obtain the payment by
the debtor due to the costs of the execution or the difficulties in the specific national
juridical procedures.
3 Concluding Remarks: Who Is the “Contemporary

Consumer?”
The different questions described by the authors have in common a key question:
“Who is the contemporary consumer” with respect to whom an increasing protec-
tion or a wider autonomy is invoked?
The definition of the identity of the consumer is fundamental in the debate on the
present and future structure of European and global food laws.
In fact, the definition of the attitudes and knowledge of consumers becomes an
essential parameter in order to measure the level of protectionism in the local rules
governing the specific commercial relationships.
In the European Union, this problem has been the object of a long judicial and
regulatory debate.
Starting from the need to eliminate obstacles to the free movement of goods, the
European Court of Justice during the last decades has described the consumer as a
person reasonably well informed, observant, and circumspect.
This means that the consumer is capable of distinguishing autonomously the
characteristics of products and to understand the message and content of advertising
with an average ability that needs to be ascertained case by case with regard to the
situation and the local traditions.7
In this way, as an example, in Estee Lauder8 and Jaegermeister,9 the Court
analyzes the perception of communications, commercial claims, or trademarks with
regard to the possible impact of social, cultural, or linguistic factors and their
interference on the consumer understanding and related choices.
Outside the sphere of “perception,” in any case, the relevance of the final
consumer’s expectations was not considered to be so relevant, taking into account
that the solicitation of national habits can create obstacles to the free circulation of
goods.
It should, however, be noted that the average consumer test is not a statistical
test. National courts and public authorities must exercise their own faculty of
judgement, having regard to the case law of the Court of Justice, to determine the
7
See, as examples, CJEU, Case C-210/96 Gut Springenheide [1998] ECR I-04657; Case c-99/01
Gottfried Linhart e Hans Biffl [2002] ECR I-9375, paras 31–32; Case C-44/01 Pippig [2003] ECR
I-03095, para 55; Case C-218/01 Henkel KGaA [2004] ECR. I-1725, paras 47, 52, 53; Cases from
C-468/01 P to C-472/01 P, Procter & Gamble Company [2004] ECR I-5141, paras 57, 58; Case
C-136/02 P Mag Instrument Inc. [2004] ECR I-9165, paras 19, 20, 27; Case C-365/04 Lid [2006]
ECR I-8501, para 78; Case C-381/05 De Landtsheer Emmanuel SA c. Comité Interprofessionel du
Vin de Champagne, Veuve Clicquot Ponsardin SA [2007] ECR I-3115, para 23. For a wide analisys
of the evolution of the EU consumer policy see Reich et al (2014); Weatherill (2013).
8
See CJEU Case C-220/98, Estée Lauder Cosmetics GmbH & Co. OHG c. Lancaster Group
GmbH, [2000] ECR I-117.
9
See the UE Tribunal Case T-81/03, Mast-J€ agermeister AG c. UAMI [2006] ECR II-5409, points
95–97, and, with the same orientation, Cases T-350/04 to 352/04, Bitburger Brauerei Th. Simon
GmbH c. UAMI [2006] ECR II-04255, point 64.
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160 V. Rubino
typical reaction of the average consumer in a given case10 without the need to resort
to a judicial technical advice, opinion polls, or other measures of inquiry.
Besides the concept of the “average consumer,” created by case law of the
European Court of Justice, Directive 2005/29/EC,11 concerning unfair business-
to-consumer commercial practices in the internal market, introduced the parameter
of the “vulnerable consumer.”
The Directive states that in order to prevent the exploitation of consumers whose
characteristics make them particularly vulnerable to unfair commercial practices,
such as children or people with specific disabilities, the impact of a commercial
practice must be taken into account from the perspective of the average member of
that specific group of consumers.
Consistently, article 5 paragraph 3 of the Directive adds, in practice, a clarifica-
tion with regard to the proportionality evaluation test,12 which, taking into account
the typical behavior of an average consumer, authorized a restriction of the free
circulation of goods only in case of a “serious” risk of consumer deception.13
The individual frailties due to a physical disease, psychological suffering (fear of
dying, loneliness, etc.), or socioeconomic problems (poverty, ignorance, etc.),
which the professional can easily consider, allow the modification of the criteria
in the context of the proportionality test. This still results in a qualitative evaluation
but referred to the assumed expectations of a typical consumer of that specific
category “at risk.”
10
See, CJEU Case C-362/88, GN-INNO-BM [1990], ECR I-667; Case C-238/89, Pall [1990] ECR
I-4827; Case C-126/91, Yves Rocher [1993] ECR I-2361Case C-315/92, Verband Sozialer
Wettbewerb [1994] ECR I-317; Case C-456/93, Langguth [1995] ECR I-1737; Case C-470/93,
Mars [1995] ECR I-1923. When it is possible the Court states directly the consumer’s ability in
perception or understanding the reality. When the case request a specific evaluation out of the
Court’s powers the national Judge must ascertain it taking into account the ECJ case law (see, on
this point, Case 94/82, De Kilkvorsh 1983] ECR p. 947; Case C-313/94, f.lli Graffione [1996] ECR
I-6039; Case C-210/96, Gut Springenheide [1998] ECR I-04657; Case c-99/01; Case C-303/97,
Verbraucher Schutzverein eV e Sektkellerei G.C. Kessler GmbH [1999] ECR I-513; Case C-44/01,
Pippig [2003] ECR I-03095.
11
See the Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005
concerning unfair business-to-consumer commercial practices in the internal market and
amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the
European Parliament and of the Council and Regulation (EC) 2006/2004 of the European
Parliament and of the Council (“Unfair Commercial Practices Directive”), OJ [2005] L 149/22.
12
See CJEU, Pall [1990] ECR I-4827, para 19; Mars [1995] ECR I-1923, para 19; Case C-465/98,
Verein gegen Unwesen in Handel und Gewerbe K€ oln eV v. Adolf Darbo AG [2000] ECR I-2297,
point 28, and the Opinions of General Advocates Tesauro, Case C-373/90 [1991], Criminal
proceedings against X, ECR I-131; Leger, Case C-465/98, Darbo [2000] ECR I-2297; Misho,
Case C-169/99, Schwarzkopf [2000] ECR I-5901; Geelhoed, Cases C-421/00, C-426/00 and 16/01,
Renate Sterbenz e Paul Dieter Haug [2002] ECR I-1009.
13
Article 5(3) of the Directive states that “commercial practices which are likely to materially
distort the economic behaviour only of a clearly identifiable group of consumers who are
particularly vulnerable to the practice or the underlying product because of their mental or physical
infirmity, age or credulity in a way which the trader could reasonably be expected to foresee, shall
be assessed from the perspective of the average member of that group (. . .).”
In other words, the reduction of the expectations with regard to consumer

behavior in that kind of situations imposes, from the point of view of solidarity, a
wider responsibility of professionals, in a context in which the protection of an
individual’s subjective experience and specific vulnerability is placed at the centre
of the juridical and political action.
The evolution of this juridical topic seems, however, still to be ongoing. The
continual increase in the judicial and regulatory attention to consumer vulnerability
in a globalized market can be interpreted as a progressive alignment of EU legal
system to the most advanced constitutional experiences in this field14 and the
definitive change of the internal market from an area of free circulation of economic
factors to a social market economy based on the respect and the promotion of
individuals’ fundamental rights, starting from solidarity.
In international law, the consumer image is not that clear, given that the
instruments dedicated in different fields to relevant topics for consumers take it
into account only in part.
Limiting the analysis to a general overview, the Consumer Protection Charter
adopted by the Consultative Assembly of the Council of Europe with its Resolution
n. 543 (1973)15 defines a consumer as a “physical or legal person to whom goods
are supplied and services provided for private use.” The definition concentrates on
the rights connected to this eminently “contractual” approach: “A) the right of
consumers to protection and assistance; B) the right to redress against damage; C)
the right to consumer information; D) the right to consumer education; E) the right
to representation and consultation.”
Similarly, the Guidelines for consumer protection of the United Nations Con-
ference on Trade and Development (UNCTAD),16 dedicated to business-to-con-
sumer transactions, state that, in this area, a consumer is “a natural person,
regardless of nationality, acting primarily for personal, family or household pur-
poses, while recognizing that Member States may adopt differing definitions to
address specific domestic needs.”17
The approach is, therefore, fragmented. The definition of consumer characteris-
tics and related rights is delegated to a specific discipline and to the national
enforcement both for the contractual transnational conflicts and for substantial
matters like transport, food, information, security, etc.
In the scenario described, the agri-food sector plays a fundamental role. It is
intrinsically connected to juridical goods such as human health, the protection of
cultural traditions, personal identity, protection of the environment, etc. and deeply
14
On this point see Jagielska and Jagielski (2012), pp. 336–353.
15
See the annex adopted by the Consultative Assembly of the Council of Europe on May, 17th,
1973 (7th Sitting), published on the official journal and available on line.
16
See the last release of this document available on internet at unctad.org/en/PublicationsLibrary/
ditccplpmisc2016d1_en.pdf. Accessed January 2017.
17
See the UNCTAD Guidelines for Consumer Protection, point II, “Scope and application,”
pp. 6–7. unctad.org/en/PublicationsLibrary/ditccplpmisc2016d1_en.pdf. Accessed January 2017.
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162 V. Rubino
conditioned by the growth in technological innovation created by the increasing

global food requirements and the reduction in international trade barriers.
As the various themes analyzed by the authors of this part show, the pooling of
experience and the common identification of criteria in order to measure the
proportionality of the national and international rules are crucial.
The development of the concept of “consumer” is capable of carrying out this
function if it is recognized not (only) as a “weak person that needs protection” but
also as a real protagonist of the market, who has the right to a free and informed
choice, and to the control—also from an ethical point of view—of the characteris-
tics of products that are offered in the market.
From this point of view, we can appreciate the contribution of the authors in
making a deeper investigation, which is necessary both in the European Union and
at the international level.
References
Bolisani E (ed) (2008) Building the knowledge society on the internet: sharing and exchanging
knowledge in networked environments. Information Science Reference, New York
Costa-Neto EM (2003) Insetos como fontes de alimentos para o homem: Valoraç~ao de recursos
considerados repugnantes. Interciencia 28:10
Fabris A (ed) (2007) Etica del virtuale, Vita e Pensiero. Pubblicazioni dell’Universita Cattolica del
Sacro Cuore, Milano
Foliart E (1999) Insects as food: why western attitude is important. Ann Rev Entomol 44:21–50
Heim H (1998) Virtual realism. Oxford University Press, Oxford
Huis AV et al (2013) Edible insects. Future prospects for food and feed security. FAO, Rome
Jagielska M, Jagielski M (2012) Are consumer rights human rights? In: Devenney J, Kenny M
(eds) European consumer protection. Theory and practice. Cambridge University Press, Cam-
bridge, pp 336–353
Keim W et al (eds) (2014) Global knowledge production in the social science. Made in circulation.
Ashgate Publishing, Farnham
Montanari M (2015) Magiare da cristiani. Diete, digiuni, banchetti. Storia di una cultura. Rizzoli,
Milano
Montanari M, Sabban F (2006) Storia e geografia dell’alimentazione, vol 1–2. UTET, Torino
Paoletti MG (ed) (2005) Ecological implications of Minilivestock. Potential of insects, rodents,
frogs and snalis. Science Publishers, Enfield
Reich N et al (eds) (2014) European consumer law. Intersentia, Cambridge
Weatherill S (2013) EU consumer law and policy. Edward Elgar, Cheltenham
Zuckerman E (2013) Rewire. Digital cosmopolitans in the age of connection. W. W. Norton & Co.,
New York
Insects in Agriculture: Traditional Roles
and Beyond
Valeria Paganizza
1 Introduction
“One bee is better than a handful of flies”: this is a proverb that well summarizes
two of the traditional roles that insects play in agriculture, one as main protagonist
actors, the other one as superb antagonists.
On the one hand, great attention has always been paid to insects as pollinators;
on the other hand, their power of destruction was declaimed also in the scrolls of the
Old Testament.
In the last decades, however, bugs have been acquiring more and more signif-
icance in agriculture: first, they were recognized as useful elements in pest man-
agement, above all when organic farming began to spread. Then the increasing
environmental concerns due to the mounting of waste also in agriculture led to
develop new strategies to tackle the problem: an example is manure reuse. But as
soon as also these new approaches became insufficient, further solutions showed to
be necessary. Entomologists started to study the role of insects in reducing waste
and successfully obtained remarkable results, using invertebrates as both manure
and solid waste reducers.
When taking into account farming, insects can play a further role: they can
represent a source of feed, rich in proteins and with a high conversion
efficiency rate.
While the appreciation of insects in animals’ nutrition is spreading, in recent
years, in Europe, several scholars have been suggesting that they could be a new,
sustainable, and accessible source of food also for human beings. Besides the inner
characteristics of insects’ meat, the main point to sustain this apparently innovative
theory grounds on the common everyday use of insects as food in several parts of
V. Paganizza (*)
Department of Law, University of Modena and Reggio Emilia, Modena, Italy
e-mail: valeria.paganizza@unimore.it

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164 V. Paganizza
the world (above all in Asia). The idea of acquiring such tradition also in Western
countries comes from the past: one of the first pamphlets on entomophagy dates
back to 1885.1
Any new issue that implies crosscutting concerns usually deserves also innova-
tive regulatory provisions, at both international and national levels. The paper will
investigate such issues, trying to understand how law is developing to answer the
most recent questions on insects in agriculture. One of the limits that the disserta-
tion meets is that, while it might be relatively easy to investigate international and
EU sources, the comparison among national legislation would require a deep
knowledge of hundreds of legal systems, thousands of provisions, and many
languages: the Author is far from reaching such expertise.
Further, the point of view belongs to a lawyer, lacking all the scientific methods
and data useful to obtain a technically irrefutable paper: scientific articles published
in the main international journals will represent points of reference taken as they
are, without any critical technical approach.
2 Traditional Role: Insects as Pollinators
2.1 Threats to Pollinators
Pollination is the basis of traditional crops, as well as the only means for the
conservation of wild species of plants.2 Just to get an idea of the significance of
such “ecosystem service,”3 a few years ago the incidence of pollination was
determined in 35% of the global crop-based food production4 (let us think on fruits
and vegetables), while the 70% of the global crop species was identified as relying
on pollination,5 the main players of which are insects.
In recent years, several driving forces endangered the traditional pollinators’
lives. Degradation and fragmentation of natural habitats resulted both in food
scarcity for these insects and in the loss of the ideal conditions for nesting and
roosting.6 New pathologies previously affecting domesticated bumblebees passed
to wild insects. New invasive species and pollution further contributed to the
destruction of the natural habitat of pollinators. Alongside these causes, chemical
factors related to agriculture (pesticides) endangered the invertebrates’ lives.7
1
Holt (1885), pp. 3–99.
2
Albrecht et al. (2012), p. 4845.
3
On pollination as “ecosystem service”, see Albrecht et al. (2012), p. 4845; Winfree et al. (2011),
pp. 80–88; Garratt et al. (2014), pp. 34–40; Blitzer et al. (2016), pp. 1–7.
4
Klein (2007), p. 306.
5
ELO-ECPA (2013), p. 1.
6
UNEP (2010), p. 5.
7
UNEP (2010), pp. 6–7.
Insects in Agriculture: Traditional Roles and Beyond 165
The decrease in the amount of insects as well as the falling of the number of
different pollinator species are the direct consequences of such threats,8 even
though mediatic attention has been mainly directed only to honey bees (Apis
mellifera L.),9 probably because of the fact that Apis mellifera is considered the
“most economically valuable” pollinator for “crop monocultures worldwide.”10
2.2 International and EU Answers Addressing Threats

to Pollinators
What are the International and EU answers to the concerns on pollinators?

With regard to the international scene, in 2000, the Fifth Conference of Parties of
the Convention on the Biological Diversity established the International Initiative
for the Conservation and Sustainable Use of Pollinators (IPI),11 feeling “the urgent
need to address the issue of worldwide decline of pollinator diversity.” The aims of
IPI run on four directions:
(a) monitoring pollinator decline, its causes and its impact on pollination services;
(b) addressing the lack of taxonomic information on pollinators;
(c) assessing the economic value of pollination and the economic impact of the
decline of pollination services;
(d) promoting the conservation and the restoration and sustainable use of pollinator
diversity in agriculture and related ecosystems.12
The agreement warmly supports the cooperation between parties and interna-
tional associations. A plan of action followed in 2002, through the adoption of COP
6 Decision VI/513 (annex II). It develops on four elements, assessment, adaptive
management, capacity building, and mainstreaming and identifies FAO as a possi-
ble leader in facilitating and coordinating the initiative. Going quickly through the
8
Biesmeijer et al. (2006), p. 351; Albrecht et al. (2012).
9
Unlikely other pollinators, Apis mellifera is not a wild insect, but it falls under the category of
domesticated animals. This is not a mere information provided for its own sake, since identifying
animals like livestock, rather than wild insects, might imply submitting them to stricter rules
concerning farming.
10
UNEP (2010), p. 2.
11
Conference of the Parties to the Convention on Biological Diversity, Decision V/5 on
Agricultural biological diversity: review of phase I of the programme of work and adoption of
a multi-year work programme. https://www.cbd.int/decision/cop/default.shtml?id¼7147.
Accessed 01 October 2016.
12
COP Decision V/5, on Agricultural biological diversity: review of phase I of the programme of
work and adoption of a multi-year work programme, para 15. https://www.cbd.int/decision/cop/
default.shtml?id¼7147. Accessed 01 October 2016.
13
Conference of the Parties to the Convention on Biological Diversity, Decision VI/5. https://
www.cbd.int/decision/cop/default.shtml?id¼7179. Accessed 01 October 2016.
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166 V. Paganizza
plan, no reference to regulatory activities can be detected: the attention focuses on

scientific assessment, economic evaluation, and policy management (which might
indirectly involve the regulatory level).
For what concerns the role of FAO, the Plant Production and Protection Division
established a Global Action on Pollination Services for Sustainable Agriculture,
with the aim to provide guidance to its member states on the conservation and use of
pollination services, and to issue policies of sustainability in this sector.14
At least from a first reading, all the official documents that we can collect about
the international initiatives on the protection of pollinators seem to be nothing more
than statements of intents—sometimes policy guidelines—that take stock of the
problem, suggest some theoretical ways to solve it, but concretely cannot tackle the
issue. However, such reflection does not refuse the importance of the international
work that has been done until now: a coordinated management plan is necessary
and must be seen as a first step towards concrete results.
For what concerns the European Union, pollinators, but above all bees, are the
subjects of a number of non-binding acts and of some regulations, with a significant
work carried out mainly in two directions: on the one hand, the EU supports
beekeeping through both national programs15 and rural development measures.16
On the other hand, EU focuses on the use of pesticides, encompassing their employ
only to those substances proved to be safe also for bees’ health.
The European Commission has also established a laboratory for bees’ health17
and increased the surveillance mechanisms on pollinators. Further, it involved the
European Food Safety Authority (EFSA), whose first report on bee mortality and
bee surveillance in Europe dates back to 2008.18 Since then, EFSA has been
performing continuous studies on insects’ health, addressing the interaction with
plants and the effects of pesticides on pollinators, and opening its activities to
14
FAO (undated-a).
15
Commission Regulation (EC) 917/2004 of 29 April 2004 on detailed rules to implement Council
Regulation (EC) 797/2004 on actions in the field of beekeeping, OJ [2004] L 163/83.
16
European Commission DG Agriculture and Rural Development (2013a). Besides the rural
development measures, the new Common Agricultural Policy provides tools aimed to have
positive effects on bees, like the compulsory greening measures in the Regulation (EU) 1307/
2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for
direct payments to farmers under support schemes within the framework of the common agricul-
tural policy and repealing Council Regulation (EC) 637/2008 and Council Regulation (EC) 73/
2009, OJ [2013] L 347/608.
17
Commission Regulation (EU) 87/2011 of 2 February 2011 designating the EU reference
laboratory for bee health, laying down additional responsibilities and tasks for that laboratory
and amending Annex VII to Regulation (EC) 882/2004 of the European Parliament and of the
Council, OJ [2011] L 29/1, repealed by Commission Regulation (EU) 415/2013 of 6 May 2013
laying down additional responsibilities and tasks for the EU reference laboratories for rabies,
bovine tuberculosis and bee health, amending Regulation (EC) 737/2008 and repealing Regulation
(EU) 87/2011, OJ [2013] L 125/7.
18
EFSA (2008).
consultations. The Authority has recently launched a new investigation to evaluate

the interplay of the different factors of stress affecting bees.19
Besides the need to protect pollinators, recently their status and activities have
been considered also for their side effects. The European Economic and Social
Committee,20 in its opinion on the proposal for a new regulation on organic
production, recommended the EU Commission to take into account also the studies
on pollination and the possible spread of genetically modified genes.
3 Traditional Role: Insects in Pest Management
The use of entomophagous parasites in agriculture as instruments for biological

control, after having registered a decrease in the postwar period, has now encoun-
tered a new success, due to the constraints to the exploitation of synthetic chemical
substances for plant protection.21
At an international level, the first texts we should take into consideration are
those of the International Plant Protection Convention and in particular the docu-
ments referring to the International Standards for Phytosanitary Measures (ISPMs).
Such standards, issued by the Commission on Phytosanitary Measures, represent
also functional orientation tools for the dispute settlement mechanism of the
WTO.22 When referring to biological control, the first standard (ISPM 1)
concerning phytosanitary principles for the protection of plants might be of inter-
est.23 At paragraph 1.1, alinea 2, let. d), it authorizes contracting parties, by virtue
of their sovereignty, to “prohibit or restrict the movement of biological control
agents and other organisms of phytosanitary concern claimed to be beneficial into
their territories,” with the “aim of preventing the introduction and/or spread of
regulated pests into their territories.”
Further, ISPM 3 specifically lays down guidelines for the export, shipment,
import, and release of biological control agents and other beneficial organisms.
Besides the declared targets, the standard aims at minimizing other nonsanitary
negative effects: when introducing parasites with a specific objective, a possible
19
EFSA (2015).
20
Opinion of the European Economic and Social Committee on the “Proposal for a Regulation of
the European Parliament and of the Council on organic production and labelling of organic
products, amending Regulation (EU) XXX/XXX of the European Parliament and of the Council
(Official Controls Regulation) and repealing Council Regulation (EC) 834/2007 COM(2014)
180 final-2014/0100 (COD), OJ [2015] C 12/75”.
21
Chandler et al. (2011), p. 1987; Sørensen et al. (2012), p. 87.
22
WTO Dispute Settlement Japan-Apples DS245.
23
Secretariat of the International Plant Protection Convention (2006) International Standards for
Phytosanitary Measures ISPM 1.
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168 V. Paganizza
side effect is that such organisms turn to be “hostile” to other forms of life not
encompassed in the planned action. In different words, using the standard formu-
lation, “a biological control agent or other beneficial organism may be a potential
pest itself.”24
Among the contracting parties to the IPPC, there are the European Union and its
Member States. This means that when considering the EU approach to biological
control,25 it will be necessary to refer to the International Standards for
Phytosanitary Measures.
Moreover, within the European Union, concerns against the effects of the
massive use of pesticides led to the development of coordinated strategies to reduce
their use, in line with the Community Environment Action Programmes.26 Direc-
tive 2009/128/EC was adopted,27 with the ambition of harmonizing the use of
pesticides, in a perspective of sustainability. As Whereas 16 and Article 12 under-
line, biological control measures should be considered in the first place, to mini-
mize or avoid the use of pesticides in areas frequented by the general public or by
vulnerable groups of people (public parks and gardens, sports and recreation
grounds, school grounds and children’s playgrounds, and in the close vicinity of
healthcare facilities), in areas protected by the Water Directive or places falling
under other protection measures, or in areas used by agricultural workers.
But also when issuing specific measures against pest diseases, the European
Commission recommends to prefer sustainable biological, physical, and other
non-chemical methods, if they provide adequate pest control.28
Though the request for alternative methods of pest management—as we said
above—has been increasing, shifting towards biological control is a choice that
might, however, hide negative effects, as the International Standard 3 states.
24
Secretariat of the International Plant Protection Convention (2006) International Standards for
Phytosanitary Measures ISPM 3: 3–7.
25
EU Commission (2013b), Annex II, A) and Annex VIII, Paragraph on Environmental impacts—
sustainability.
26
Decision 1600/2002/EC of the European Parliament and of the Council of 22 July 2002 laying
down the Sixth Community Environment Action Programme, OJ [2002] L 242/1.
27
Directive 2009/128/EC of the European Parliament and of the Council of 21 October 2009
establishing a framework for Community action to achieve the sustainable use of pesticides, OJ
[2009] L 309/71.
28
See, for instance, Commission Recommendation 2014/63/EU of 6 February 2014 on measures to
control Diabrotica virgifera virgifera Le Conte in Union areas where its presence is confirmed, OJ
[2014] L 38/46.
4 Innovative Role: Insects as Waste Reducers
4.1 The Opportunity Enabled by the Exploitation of Insects

in Waste Management
After having considered the most traditional roles that insects have always played,
it is now time to address the new functions that such common creatures could carry
out in agriculture.
Tackling one of the hottest topics of the moment, insects could, for instance, play
an essential role in reducing waste. How does this task refer to agriculture?
Manure management and storage have progressively become two key issues:
increasing of livestock, decreasing of rural areas, and rejection of traditional
agricultural practices are resulting in a growing amount of manure that needs to
be treated.
In recent years, the use of dung for biomass seemed to be a solution, at least until
environmental and health concerns started to slow down the building of new plants.
Some insects, however, proved to be an answer—a new answer indeed—to such
problem. Many scholars have been studying for years the capacity of some bugs,
above all larvae, to take the elements essential to their growth from manure, with a
number of beneficial results.29
Firstly, insect larvae could reduce the mass of manure, feeding themselves
through the nutrients of the original bulk. Thus, the quantity of dung requiring to
be handled would definitely decrease.
Secondly, the degradation process undergone by manure results in the pollution
potential falling.30
Thirdly, due to the process of ventilation occurring while insects stand on it,
manure progressively dries, and consequently the negative effect of storage linked
to odors lessens.31
But the most important effect is probably the fourth: what insects eat from
manure is converted into protein mass (the insects themselves) with the prospective
use that we will see later on (following paragraph).
The application of bugs as above mentioned could extend also to food waste,
with even better results than those obtained for manure reducing.32
29
Barnard et al. (1998), pp. 600–605; Čičková et al. (2012); Van Zanten et al. (2015),
pp. 362–369; Tabassum et al. (2016); Salomone et al. (2017). See also the Communication
plan and Layman’s Report on the project ECODIPTERA, Implementation of a management
model for the ecologically sustainable treatment of pig manure in the Region of Los Serranos,
Valencia-Spain. LIFE05 ENV/E/000302. http://ec.europa.eu/environment/life/project/Projects/
index.cfm?fuseaction¼search.dspPage&n_proj_id¼2897. Accessed 01 October 2016.
30
According to Sheppard and Newton (2001), the pollution potential might reduce up to 50–60%
or more.
31
Sheppard and Newton (2001).
32
Nguyen et al. (2015), pp. 406–410.
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170 V. Paganizza
4.2 Insects as Waste Reducers: Regulatory Framework
Anyway, provided that insects represent also this precious opportunity, how is their
employ as digesters regulated? Going through international and EU provisions, no
rules can be detected on such topic, that is to say, that any State can provide its own
regulation in compliance with the general principles on environment and health
protection.
The lack of legislation does not imply that dealing with insects, with the purpose
to reduce waste or manure, will entail no issues. First of all, could we say that
growing insects on dung is a form of farming? Are insects livestock? If so, do
general rules on hygiene of feed apply? What is their final purpose?
The answers to all these questions could help to identify how, lacking specific
provisions, the matter could be regulated. If we give a look to legislative provisions
that are currently in force, we will realize that the newfangled role of insects as
waste reducers may face significant obstacles. Annex III to Regulation (EC) 767/
2009,33 for instance, prohibits the use of feces and urine for animal nutritional
purposes “irrespective of any form of treatment or admixture,” thus preventing the
application of the innovative solution and any further reflections on it.
5 Innovative Role: Insects as Feed Source
5.1 Advantages of Employing Insects as Feed Components
Now it is time to complete the previous paragraph identifying the final use of those
insects that digested manure. After they have converted all the waste and pollutant
elements into protein mass, they could form the main ingredient for animal feeding.
But bugs could become feed even if they were nourished through non-waste
products.
Unlike the previous function, the use of insects to produce feed is something
already experienced: actually, chickens (birds in general) and fishes commonly eat
insects, in nature. The use of bugs as feed component is thus extremely compliant
with such animals’ diet, when supplementing other feed sources as soy, maize,
grains, and fishmeal.34
The significant exploitation of such crops contributes in great part to some of
those phenomena that are generating general apprehension: land occupation,
33
Regulation (EC) 767/2009 of the European Parliament and of the Council of 13 July 2009 on the
placing on the market and use of feed, amending European Parliament and Council Regulation
(EC) 1831/2003 and repealing Council Directive 79/373/EEC, Commission Directive 80/511/
EEC, Council Directives 82/471/EEC, 83/228/EEC, 93/74/EEC, 93/113/EC and 96/25/EC and
Commission Decision 2004/217/EC, OJ [2009] L 229/1.
34
FAO (undated-b), p 2.
primary production use, acidification, climate change, energy use, and water
dependence.35 Mass rearing of insects could therefore turn to be a sustainable
solution able to answer all the mentioned issues.
Nevertheless, some questions arise, above all if we consider those insects grown
only on waste and manure: are they a suitable “ingredient” for feed? Can we apply
general rules on animal food?
5.2 Insects in Feed: Regulatory Framework
At an international level, once again the organization we should refer to is FAO. In

recent years, it has been developing the theme of insects on a number of directions.
Insects are mentioned in several documents36 as possible sources of proteins to
supplement traditional feed ingredients, though until now neither conventions nor
specific standards have been agreed upon on such topic.
For what concerns the European Union, provisions are spread in several acts.
First—and this is the answer to one of the questions written above—insects should
be considered as common livestock and thus should fall under the general rules on
farming. Once they are slaughtered, however, and intended for animal consump-
tion, we should take into account Regulation (EC) 767/2009,37 Regulation
(EC) 183/2005,38 Directive 2002/32/EC,39 Regulation (EC) 1069/2009,40 Regula-
tion (EC) 999/2001,41 and its amending Regulation (EU) 56/2013.42 Trying to
summarize, on the one hand, feeds intended for fish, chickens, and pigs could
35
Sánchez-Muros et al. (2014), p. 16.
36
FAO (undated-b).
37
Regulation (EC) 767/2009 of the European Parliament and of the Council of 13 July 2009 on the
placing on the market and use of feed, amending European Parliament and Council Regulation
(EC) 1831/2003 and repealing Council Directive 79/373/EEC, Commission Directive 80/511/
EEC, Council Directives 82/471/EEC, 83/228/EEC, 93/74/EEC, 93/113/EC and 96/25/EC and
Commission Decision 2004/217/EC, OJ [2009] L 229/1.
38
Regulation (EC) 183/2005 of the European Parliament and of the Council of 12 January 2005
laying down requirements for feed hygiene, OJ [2005] L 35/1.
39
Directive 2002/32/EC of the European Parliament and of the Council of 7 May 2002 on
undesirable substances in animal feed, OJ [2002] L 140/10.
40
Regulation (EC) 1069/2009 of the European Parliament and of the Council of 21 October 2009
laying down health rules as regards animal by-products and derived products not intended for
human consumption and repealing Regulation (EC) 1774/2002, OJ [2009] L 300/1.
41
Regulation (EC) 999/2001 of the European Parliament and of the Council of 22 May 2001 laying
down rules for the prevention, control and eradication of certain transmissible spongiform
encephalopathies, OJ [2001] L 147/1.
42
Commission Regulation (EU) 56/2013 of 16 January 2013 amending Annexes I and IV to
Regulation (EC) 999/2001 of the European Parliament and of the Council laying down rules for
the prevention, control and eradication of certain transmissible spongiform encephalopathies, OJ
[2013] L 21/3.
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172 V. Paganizza
abstractly be based on proteins coming from insects, provided that they are obtained
in compliance with the provisions on safety and hygiene.43 On the other hand—and
this relates to the questions of the previous paragraph—feed obtained from insects
grown on waste should not be used for animals intended to become food, while
manure’s utilization is prohibited for animals’ nourishment, as we said above.44
6 Innovative Role: Insects as Food
6.1 Insects as Food in a Global Perspective
Besides being an important constituent of the daily nutrition and economy of a large
part of the world, insects seem to represent the sustainable solution to grant future
food security for a global population in constant growth.
The Food and Agriculture Organization of the United Nations has been working
on insects for years,45 focusing on several aspects of bugs breeding, from nutritional
and environmental perspectives to economic and organizational ones. Lately,
working with outstanding researchers on the topic, FAO underlined that “Recent
developments in research and development show edible insects to be a promising
alternative for the conventional production of meat, either for direct human con-
sumption or for indirect use as feedstock.”46 Nevertheless, it recognized that much
has still to be done, even for what concerns the regulatory framework.
If we consider the international scene, we cannot come across any reference to
insects as food or feed. We can find some mentions of bugs only in the Codex
Alimentarius, which considers them just as elements that contaminate foodstuffs or
feedstuffs.47 The lack of provisions does not necessarily stand for the lack of
interest in insects as food or feed. In recent years, the Codex Alimentarius Com-
mission has been working on the issue, trying to develop a regional standard for
edible crickets, with regard to Asia. In 2010, the delegation of LAO PDR proposed
to carry on an investigation on the topic, stressing the significance of this source for
43
Commission Regulation (EU) 2017/893 of 24 May 2017 amending Annexes I and IV to
Regulation (EC) No 999/2001 of the European Parliament and of the Council and Annexes X,
XIV and XV to Commission Regulation (EU) No 142/2011 as regards the provisions on processed
animal protein, OJ [2017] L 138/92 has recently clarified limits and conditions for the use of
insects only in aquaculture feedstuffs.
44
See Sect. 4.2.
45
The FAO program on edible insects started on 2003, see http://www.fao.org/forestry/
edibleinsects/en/. Accessed 01 October 2016.
46
FAO-WUR (2013), p. 161.
47
See, for instance, the standards for certain pulses, for oats, for sorghum grains, for rice, for wheat
flour, for peanuts, etc. as well as the recommended international code of hygienic or the general
standard for contaminants and toxins in food and feed. See http://www.fao.org/fao-who-
codexalimentarius/standards/en/. Accessed 01 October 2016.
the area, under both nutrition and commercial aspects. Consumer protection was the
leading motivation: a common standard would have ensured fair practices and
guaranteed human health.48 The Coordinating Committee, while showing interest
for the proposal, due to the growing attention towards edible insects also at a global
level, reported some demands for details coming from other delegations, as for “the
nature of the products to be covered by the Standard, the level of trade and the
dimension of the production.”49 An electronic working group was thus established
to develop a discussion paper on the topic.
In 2012, the 18th session of the FAO/WHO Coordinating Committee for Asia
took place. Following the previous meeting, the delegation of LAO, leader of the
working group, noticed that it had “received limited consumption data,” while
“information on trade was not available,”50 asking for FAO support in collecting
data.51 A new working group was thus established to continue the work on the topic.
Besides Thailand, which in May 2014 submitted an interim report “on the house
cricket farming and chain distribution to consumer for preliminary identification of
the quality and safety and critical points of hazard of the produces,” the working
group did not receive any significant information.52 During the 19th session of the
FAO/WHO Coordinating Committee for Asia,53 despite the interest shown by some
participants and the FAO remarks on the global importance of insects as a source of
food, the Coordinating Committee decided to discontinue considerations on the
topic, until more information would have been available.
6.2 Insects as Food in the European Union
Within the European Union, the theme of insects as food had been quite contro-
versial till the end of 2015, when the new regulation on novel food was published.54
Before that moment, lacking a harmonized regulatory framework, Member States
had managed the issue with different approaches.
48
Codex Alimentarius Commission (2010) p. 17, para 140.
49
Ibid., para 141.
50
Ibid., para 206.
51
On the occasion, the representative of FAO informed the Committee of the work that the
organization was carrying on under the FAO’s Technical Cooperation Project “Sustainable insect
farming and harvesting for better nutrition, improved food security and household income
generation”, Codex Alimentarius Commission (2013), para 208.
52
Codex Alimentarius Commission (2014).
53
Codex Alimentarius Commission (2015), paras 79–84.
54
Regulation (EU) 2015/2283 of the European Parliament and of the Council of 25 November
2015 on novel foods, amending Regulation (EU) 1169/2011 of the European Parliament and of the
Council and repealing Regulation (EC) 258/97 of the European Parliament and of the Council and
Commission Regulation (EC) 1852/2001, OJ [2015] L 327/1.
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174 V. Paganizza
Regulation (EC) 178/2002 provides the following definition of food: “any

substance or product, whether processed, partially processed or unprocessed,
intended to be, or reasonably expected to be ingested by humans.” Under the
regulation, “Food” includes “drink, chewing gum and any substance, including
water, intentionally incorporated into the food during its manufacture, preparation
or treatment” and excludes feed, live animals unless they are prepared for placing
on the market for human consumption; plants prior to harvesting; medicinal
products; cosmetics; tobacco and tobacco products; narcotic or psychotropic sub-
stances; residues and contaminants.
At a first glance, insects intended for human consumption could fall under the
definition of food, either alive or when already slaughtered. Within the European
Union, however, people have not been appreciably consuming insects as food, at
least over the past 50 years. Under Regulation (EC) 258/9755 (repealed by the new
regulation on novel food), all food or food ingredients that had not been used for
human consumption to a significant degree within the Community, before May
15, 1997, should be considered novel food and should undergo an assessment
procedure before their placing on the EC (now EU) market. If we stopped to such
consideration, we should immediately conclude that insects had to undergo the
authorization procedure as novel food because of their absence from the EC market
before 1997. However, if we look at Article 1(2) of the Regulation, we will find a
list of categories to which the provisions applied: c) foods and food ingredients with
a new or intentionally modified primary molecular structure; (d) foods and food
ingredients consisting of or isolated from microorganisms, fungi, or algae; (e) foods
and food ingredients consisting of or isolated from plants and food ingredients
isolated from animals, except for foods and food ingredients obtained by traditional
propagating or breeding practices and having a history of safe food use; (f) foods
and food ingredients to which had been applied a production process that was not
used at that time, where that process gave rise to significant changes in the
composition or structure of the foods or food ingredients that affected their nutri-
tional value, metabolism, or level of undesirable substances.
If strictly considered, insects do not fall under such categories. They could
somehow meet the description of letter e), but insects are not “isolated from
animals”: they are animals.56 When thinking about the old Novel Food Regulation,
the EC legislator was not considering at all the possibility that bugs could become
part of the western everyday diet. Notwithstanding, paragraph 3 of Article 1 offered
the opportunity to determine where a food or food ingredient fell within the scope of
paragraph 2 through the Committee procedure (Article 13).
Though insects seem to be excluded from the old regulatory framework on novel
food, we should notice that Regulation (EC) 834/2007 on organic products takes
55
Regulation (EC) 258/97 of the European Parliament and of the Council of 27 January 1997
concerning novel foods and novel food ingredients, OJ [1997] L 43/1.
56
On this “oversight”, refer to Gleadle (2011), para 4.12.
them into consideration.57 Article 2 (f) defines as livestock production “the pro-
duction of domestic or domesticated terrestrial animals (including insects).” One
could thus think that the provision encompasses also edible bugs and could argue
that insects should follow the general provisions on food since they are not
explicitly excluded from the scope of Regulation (EC) 178/2002, they were not
explicitly included in Regulation (EC) 258/97, and they are expressly mentioned for
what concerns organic products.
Actually, we should contextualize also Regulation (EC) 834/2007: at the time,
insects were not part of the nutritional habits of the Community, but they were not
unrelated to food production. The first example we could think about is that of bees
and honey. Organic production is related not only to food but to agriculture in
general: even textiles could be organic. In this perspective, silkworms would match
the definition of livestock of Regulation (EC) 834/2007, when referred to the
organic production.
The only solution we could thus think about with regard to edible insects is
applying the Regulation on novel food,58 and indeed the new Regulation
(EU) 2015/2283 applies also to “whole insects and their parts,” as provided under
Whereas 8.59
One could argue that it would not make much sense classing as novel foods some
products that are traditionally consumed in other areas of the world. We might draw
opposite considerations. On the one hand, some safety concerns could arise since
hygienic practices, as well as human response to them, could vary depending on the
part of the world we focus on. In this sense, the assessment procedure for novel food
will be justified. Further, the European Food Safety Authority, in its technical report
updating on its activities on Emerging Risks 2012–2013, while recognizing that
several reasons could lead to modify the European diet by introducing edible
insects, also underlines the possibility for new emerging risks.60 The EFSA Stake-
holder Consultative Group on Emerging Risks (StaCG-ER) further added that the
introduction of edible insects breeding could also be an “issue in terms of
(i) invasive insect species or (ii) biosecurity and carriers of plant pathogens.” The
need to further assess the possible effects of bugs rearing, and the belief that insects
57
Council Regulation (EC) 834/2007 of 28 June 2007 on organic production and labelling of
organic products and repealing Regulation (EEC) 2092/91, OJ [2007] L 189/1.
58
Paganizza (2016).
59
Regulation (EU) 2015/2283 of the European Parliament and of the Council of 25 November
2015 on novel foods, amending Regulation (EU) 1169/2011 of the European Parliament and of the
Council and repealing Regulation (EC) 258/97 of the European Parliament and of the Council and
Commission Regulation (EC) 1852/2001, OJ [2007] L 327.
60
EFSA (2014), p. 10: “Potential safety issues may arise by the use of insects as food and feed as
(i) new hazards in terms of pathogens (for humans, plants and animals) or introduction of pests,
animal and plant diseases into the EU, (ii) new or increased exposure to contaminants
(e.g. pesticides, natural toxins like venoms and stings, heavy metals, processing/veterinary resi-
dues) and (iii) allergenicity (e.g. by the presence of chitin, which has been associated to asthma)”.
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176 V. Paganizza
would not be used in the following years as food or feed, led the Consultative Group
to exclude the question of edible insects from EFSA priorities.61
Despite this consideration, the EU institutions worked on the draft proposal to
amend the novel food regulation62 and finally adopted the new text. Besides the
explicit inclusion of insects within the scope of the act, the core modification, for
what concerns the topic at issue, relates to the placing on the market of traditional
food from third countries. For those traditional products from non-EU Members, for
which a history of safe food use for at least 25 years has been demonstrated by the
applicant, a notification procedure applies,63 provided that Member States or EFSA
do not present any reasoned safety objections, based on scientific evidence.64 In
case of oppositions, an assessment procedure will apply, with shorter deadlines than
the standard one.65
After this quick overview on how the presence of insects is regulated in agriculture
and in its related areas, like food and feed production, both at EU and international
levels, some considerations arise.
First, the interaction between insects and agriculture shows to be a very intimate
one: while the former are essential to the latter, good agricultural practices will be
the only means to solve some of the problems related to biodiversity, like the
decreasing in the number of species and the suspect death of individual insects. A
ground for further investigation pertains to cultivators’ awareness of the effects that
farming choices and behaviors could have on the ecosystem. Are there any initia-
tives to promote farmers’ knowledge of good agricultural practices? If so, are they
successful? What are the possible coercive tools to prevent unsustainable practices,
where environmental consciousness cannot affect destructive conducts?
61
EFSA (2014), p. 10.
62
Proposal for a Regulation of the European Parliament and of the Council on novel foods,
COM/2013/0894 final - 2013/0435 (COD).
63
See Whereas 15, Article 3(2)(c), and Articles 14–20 of Regulation (EU) 2015/2283 of the
European Parliament and of the Council of 25 November 2015 on novel foods, amending
Regulation (EU) 1169/2011 of the European Parliament and of the Council and repealing
Regulation (EC) 258/97 of the European Parliament and of the Council and Commission Regu-
lation (EC) 1852/2001, OJ [2015] L 327/1.
64
Article 15(2) of Regulation (EU) 2015/2283 of the European Parliament and of the Council of
25 November 2015 on novel foods, amending Regulation (EU) 1169/2011 of the European
Parliament and of the Council and repealing Regulation (EC) 258/97 of the European Parliament
and of the Council and Commission Regulation (EC) 1852/2001, OJ [2015] L 327/1.
65
See Article 16 of Regulation (EU) 2015/2283 of the European Parliament and of the Council of
25 November 2015 on novel foods, amending Regulation (EU) 1169/2011 of the European
Parliament and of the Council and repealing Regulation (EC) 258/97 of the European Parliament
and of the Council and Commission Regulation (EC) 1852/2001, OJ [2015] L 327/1.
The work done at a global level to protect pollinators marks certainly a point in
this direction, even if we can perceive a sort of discrimination among insects, where
major attention is paid to honey bees. Once again, we could wonder if further
protection for other species might be significant and to what extent. Any interdis-
ciplinary study carried on by entomologists, agronomists, and jurists could suggest
new ideas for global and regional policy actions in this field.
When considering pest management, we could identify a common strategy at
international and EU levels due to the fact that the European Union and its
Members States are all parties to the Convention on Plant Protection and thus
adhere to its standards. This is undeniably an asset, functional to pursue a harmo-
nized strategy for the protection of insects and the enhancement of their roles in
agriculture.
For what concerns insects as waste reducers, the subject might prove to be too
innovative to find even an institutional reference. Being one of the core challenges
of the future, the need for regulation becomes pressing.
Finally, when referring to the use of insects for feed and food within the
European Union, while the former can resort to the rules governing feed in general,
but still faces a number of limitations in applicable provisions, the latter has just
found a discipline in the new regulation on novel foods.
In conclusion, even though insects represent a source of inestimable value for
agriculture, for several reasons and on several grounds of operations, the provisions
that regulate their presence and use, spread in various acts, seem to underestimate
their potential. The crosscutting nature of the topics cannot comply with a single set
of provisions, and actually this would not be necessary. What turns to be really
essential is the supplement of the existing rules, in the lacking aspects that this short
paper tried to underline. To support regulatory interventions, interdisciplinary
targeted projects could unveil which factors require enhancement and how this
should be carried out.
References
Albrecht M et al (2012) Diverse pollinator communities enhance plant reproductive success. Proc
R Soc B 279:4845–4852. doi:10.1098/rspb.2012.1621
Barnard DR, Harms RH, Sloan DR (1998) Biodegradation of poultry manure by house fly
(Diptera: Muscidae). Environ Entomol 27(3):600–605. doi:10.1093/ee/27.3.600
Biesmeijer JC et al (2006) Parallel declines in pollinators and insect-pollinated plants in Britain
and the Netherlands. Science 313:351–354. doi:10.1126/science.1127863
Blitzer EJ et al (2016) Pollination services for apple are dependent on diverse wild bee commu-
nities. Agric Ecosyst Environ 221:1–7. doi:10.1016/j.agee.2016.01.004
Chandler D et al (2011) The development, regulation and use of biopesticides for integrated pest
management. Phil Trans R Soc B 366:1987–1998. doi:10.1098/rstb.2010.0390
Čičková H et al (2012) Biodegradation of pig manure by the housefly, Musca domestica: a viable
ecological strategy for pig manure management. PLoS One 7(3):e32798. doi:10.1371/journal.
pone.0032798
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Codex Alimentarius Commission (2010) Report of the seventeenth session of the FAO/WHO
coordinating committee for Asia. REP11/ASIA. http://www.maff.go.jp/e/ccasia/about_ ccasia/
pdf/rep11_ase.pdf. Accessed 9 June 2017
Codex Alimentarius Commission (2013) Report of the eighteenth session of the FAO/WHO
coordinating committee for Asia. REP13/ASIA. http://www.maff.go.jp/j/ccasia/19/pdf/
rep13_ase.pdf. Accessed 9 June 2017
Codex Alimentarius Commission (2014) Discussion paper on the development of a regional
standard for edible crickets and their products. CX/ASIA 14/19/10. http://www.maff.go.jp/j/
ccasia/19/pdf/as19_10e.pdf Accessed 9 June 2017
Codex Alimentarius Commission (2015) Report of the nineteenth session of the FAO/WHO
coordinating committee for Asia. REP15/ASIA. ftp://ftp.fao.org/codex/reports/reports_ 2015/
REP15_ASe.pdf. Accessed 9 June 2017
Conference of the Parties to the Convention on Biological Diversity, Decision V/5 on agricultural
biological diversity: review of phase I of the programme of work and adoption of a multi-year
work programme. https://www.cbd.int/decision/cop/default.shtml?id¼7147. Accessed 9 June
2017
EFSA (2008) Bee mortality and bee surveillance in Europe - a report from the assessment
methodology unit in response to agence francaise. http://www.efsa.europa.eu/en/efsajournal/
pub/rn-154. Accessed 9 June 2017
EFSA (2014) Technical report. Update on EFSA’a activities on emerging risks 2012–2013. doi:10.
2903/sp.efsa.2014.EN-585
EFSA (2015) Statement on the suitability of the BEEHAVE model for its potential use in a
regulatory context and for the risk assessment of multiple stressors in honeybees at the
landscape level. EFSA J 13(6):4125. doi:10.2903/j.efsa.2015.4125
ELO-ECPA (2013) Pollinators and agriculture. Agricultural productivity and pollinator protec-
tion. http://www.ecpa.eu/sites/default/files/Pollinators%20brochure_B%C3%A0T2.pdf.
Accessed 9 June 2017
European Commission (2013a) Evaluation of measures for the apiculture sector. http://ec.europa.
eu/agriculture/evaluation/market-and-income-reports/apiculture-2013_en.htm. Accessed
9 June 2017
European Commission (2013b) Staff working document accompanying the proposal for a regula-
tion of the European Parliament and on the Council on protective measures against pests of
plants. SWD/2013/0169 final
FAO (undated-a) Pollination services for sustainable agriculture. http://www.fao.org/fileadmin/
templates/agphome/documents/Biodiversity-pollination/Pollination-FolderFlyer_web.pdf.
FAO (undated-b) The contribution of insects to food security, livelihoods and the environment.
http://www.fao.org/docrep/018/i3264e/i3264e00.pdf. Accessed 9 June 2017
FAO-WUR (2013) Edible insects: future prospects for food and feed security. http://www.fao.org/
docrep/018/i3253e/i3253e.pdf. Accessed 9 June 2017
Garratt MPD et al (2014) Avoiding a bad apple: insect pollination enhances fruit quality and
economic value. Agric Ecosyst Environ 184:34–40. doi:10.1016/j.agee.2013.10.032
Gleadle A (2011) Emerging food technologies: novel protein sources as food. UK Food Standard
Agency Report. FSA11/11/20 https://www.food.gov.uk/sites/default/files/multi media/pdfs/
board/fsa111110.pdf. Accessed 9 June 2017
Holt VM (1885) Why not eat insects? Pryor Publications, Yorkletts
Klein AM (2007) Importance of pollinators in changing landscapes for world crops. Proc R Soc B
274:303–313. doi:10.1098/rspb.2006.3721
Nguyen TTX, Tomberlin JK, Vanlaerhoven S (2015) Ability of black soldier fly (Diptera:
Stratiomyidae) larvae to recycle food waste. Environ Entomol 44(2):406–410. doi:10.1093/
ee/nvv002
Paganizza V (2016) Eating insects: crunching legal clues on entomophagy. Riv dir al 10(1):16-41.
http://www.rivistadirittoalimentare.it/rivista/2016-01/PAGANIZZA.pdf Accessed 9 June 2017
Salomone R et al (2017) Environmental impact of food waste bioconversion by insects: applica-

tion of life cycle assessment to process using Hermetia illucens. J Clean Prod 140(2):890–905.
doi:10.1016/j.jclepro.2016.06.154
Sánchez-Muros M-J, Barroso FG, Manzano-Agugliaro F (2014) Insect meal as renewable source
of food for animal feeding: a review. J Clean Prod 65:16–27. doi:10.1016/j.jclepro.2013.11.
068
Sheppard DC, Newton GL (2001) Insect digestion of manure. In: Lorimor J et al (eds) Manure
management strategies/technologies white paper. Organic value recovery solutions. http://
www.organicvaluerecovery.com/studies/studies_insect_digestion_of_manure.htm. Accessed
9 June 2017
Sørensen JG, Addison MF, Terblanche JS (2012) Mass-rearing of insects for pest management:
challenges, synergies and advances from evolutionary physiology. Crop Prot 38:87–94. doi:10.
1016/j.cropro.2012.03.023
Tabassum A, Abbasi T, Abbasi SA (2016) Reducing the global environmental impact of livestock
production: the minilivestock option. J Clean Prod 112(2):1754–1766. doi:10.1016/j.jclepro.
2015.02.094
UNEP (2010) Global honey bee colony disorders and other threats to insect pollinators. http://
wedocs.unep.org/bitstream/handle/20.500.11822/8544/-UNEP%20emerging%20issues_%
20global%20honey%20bee%20colony%20disorder%20and%20other%20threats%20to%
20insect%20pollinators-2010Global_Bee_Colony_Disorder_and_Threats_insect_pollinators.
pdf?sequence¼3&isAllowed¼y. Accessed 9 June 2017
Van Zanten HHE et al (2015) From environmental nuisance to environmental opportunity:
housefly larvae convert waste to livestock feed. J Clean Prod 102:362–369. doi:10.1016/j.
jclepro.2015.04.106
Winfree R, Gross BJ, Kremen C (2011) Valuing pollination services to agriculture. Ecol Econ 71
(C):80–88. doi:10.1016/j.ecolecon.2011.08.001
www.ebook3000.com
Animal Welfare Standards in Agriculture:
Drivers, Implications, Interface?
Diane Ryland
1 Introduction
Concern for the welfare of animals in agriculture has moved beyond the views of a
minority of society.1 The welfare of animals reared for food has become a complex,
interdisciplinary, political and societal interest,2 the global regulation of which has
economic significance for domestic economies.3 Farm animal welfare standards
have been adopted by major public bodies and also in a ‘proliferation’ of private
farm assurance schemes.4 Private prima facie voluntary standards of animal welfare
coexist5 alongside public standards or indeed as substitutes in the absence of the
latter.6 It is relevant to consider the increasing societal concerns of the ethical
consumer and the market demand for quality7 agricultural produce sourced from a
supply chain throughout which the enhanced welfare of farm animals is ensured.8
Higher animal welfare standards, it would appear, are specified increasingly in
1
Robertson (2015), p. 276. ‘The public concern about animal welfare is increasing and retailers
and governments are well aware of this’: Kemp and Verstegen (2012), p. ix.
2
See McEldowney et al. (2013), pp. 4, 5, and 16.
3
Botterill and Daugbjerg (2011), p. 489.
4
Smith (2009), para 56.
5
Daugbjerg and Botterill (2012), p. 307.
6
Smith (2009), para 10.
7
‘As advances in science, increases in wealth and evolving societal concerns with respect to the
environment, sustainability and animal welfare put greater focus on a wider range of food quality
attributes, both private firms and public institutions find themselves responding increasingly to
consumer and societal demands for higher quality food.’ Smith (2009), para 4.
8
Ryland (2014), pp. 851–852.
D. Ryland (*)
Law School, University of Lincoln, Lincoln, UK
e-mail: dryland@lincoln.ac.uk

182 D. Ryland
private assurances of good agricultural practice. Yet this dichotomy of public and
private animal welfare standards gives rise to a number of questions concerning the
relations between the public and private institutions and their respective animal
welfare standards, a relationship that is uncertain in law.9
This chapter is exploring as its main concern the interface between the interna-
tional public animal welfare standards of the World Organisation for Animal Health
(OIE)10 and private, purportedly higher, global standards of animal welfare. It is
seeking to accommodate the respective interests of concerned stakeholders, includ-
ing the welfare of food-producing animals in agriculture. In particular, the impli-
cations of standardisation, a voluntary marketing tool, are examined in the context
of animal welfare in the global agri-food chain.
As agri-food production evolves, the law must respond to redress the potential
detrimental impacts, which if left ‘unregulated’ could impact adversely on the
various stakeholders involved, such as the small agricultural producer, in particular,
in a developing country seeking a market outlet, for example, or the consumer of
animal welfare agri-produce in the global value chain. The scope for conflict arises
between public and private animal welfare standard scheme owners should the
latter destabilise the standards of the former in the global agri-food chain.
The OIE, the intergovernmental and recognised international standard-setting
organisation for animal health,11 has been granted a mandate to develop animal
welfare standards. Principles and standards of animal welfare applicable to food-
producing animals, based on science, are contained in the OIE Terrestrial Animal
Health Code (TAHC).12 This chapter begins, in Sect. 2, with an overview of the
OIE definitions of animal welfare, the animal welfare principles and the chapters
specific to the welfare of certain food-producing animals in agriculture in the OIE
TAHC. A ‘plethora’13 of private animal welfare assurance schemes purporting to
promote the added value of animal welfare standards in the agri-food chain has
evolved alongside these public standards.
Section 3 discusses the reasons underpinning the emergence of private animal
welfare quality assurances and describes three private animal welfare standard
schemes, which have been selected for their diverse natures and respective mis-
sions. Focus is placed on the animal welfare standards of GLOBALG.A.P. and its
‘Integrated Farm Assurance’ scheme.14 GLOBALG.A.P. is a global partnership of
an increasing number of food retailers/service providers and producers, which
subscribe as members to GLOBALG.A.P.’s animal welfare standards of good
9
See, for example, Henson and Reardon (2005), p. 250.
10
From the French acronym, ‘Office International des Épizooties’.
11
World Trade Organization (WTO) in the Multilateral Regulatory Framework for International
Trade.
12
World Organisation for Animal Health (OIE) TAHC (2016a), Section 7.
13
Henson (2008), p. 64.
14
http://www.globalgap.org/uk_en/what-we-do/globalg.a.p.-certification/globalg.a.p.-00001/Ani
mal-Welfare/. Accessed 10 July 2015.
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Animal Welfare Standards in Agriculture: Drivers, Implications, Interface? 183
agricultural practice. The particular interests of the stakeholders involved, in the

development of private standards, are considered in an attempt to ascertain
the driving force behind the increasing emphasis on improving the welfare of
animals reared for food and the potential to deliver higher standards of farm animal
welfare.
Voluntary private animal welfare standard and certification schemes do raise,
potentially, a number of regulatory concerns, their ‘voluntary’ status becoming de
facto mandatory in order for producers to gain access to the global food market,
with added cost implications.15 Practices of market differentiation on the part of
retailers when privately marketed standards may potentially duplicate public ani-
mal welfare standards,16 or act as substitutes without a clear evidence base, with
cost factors17 pose further issues for consumers and public bodies.
Emphasis is placed in Sect. 4 on one implication, namely the potential to
undermine the international animal welfare standards of the OIE should private
global animal welfare standards conflict with the former science-based standards
for food-producing animals agreed upon by the consensus of developed and devel-
oping countries. The role of private standards in animal welfare is a contemporary
concern of the OIE, which is concerned to promote the implementation of its
standards as the international reference base. This section continues to analyse
the associated role of coordinated governance, a soft law regulatory tool, as a step to
ameliorate this tension. The originality of this chapter lies in its focus on the hybrid
nature of animal welfare standards in agriculture feeding into the global food chain
and in the coordination of relations between the OIE and global private standard-
setting institutions.18
Section 5 introduces the capacity of standardisation under the auspices of the
International Organization for Standardization (ISO) to act as a bridge between this
public/private dichotomy of animal welfare standards applicable to food-producing
animals. This chapter is not proposing a legal solution by reaching out to the public
regulatory tools of command and control laws, for example, or a revised multilat-
eral regulatory framework19 or one that is comprehensive. The emerging public and
private interface in transnational animal welfare governance in the global agri-food
15
World Trade Organization (WTO) (2007a, c).
16
Burrell (2011), pp. 251–270.
17
Scannell (2008), at sections 2, 4.
18
The growth of private food safety standards and certification schemes and their ‘role in global
food safety governance’ has been the subject of scholarly research: Fagotto (2014), p. 85. See, for
example, Henson and Reardon (2005), pp. 241–253; Hatanaka et al. (2005), pp. 354–369; Fulponi
(2006), pp. 1–13; Tallontire (2007), pp. 775–791; Smith (2009).
19
An evaluation as to whether public/private animal welfare standards, which are separate to the
international standards for animal health of the OIE, fall outside the respective ambits of the WTO
Agreement on the Application of Sanitary and Phytosanitary (SPS) Measures (science-based
health requirements) https://www.wto.org/english/docs_e/legal_e/15-sps.pdf and the WTO Agree-
ment on Technical Barriers to Trade (product standards) https://www.wto.org/english/docs_e/
legal_e/17-tbt.pdf falls beyond the scope of this work. See WTO (2007b).
184 D. Ryland
chain is the central aspect of this work. Section 6 places further emphasis on the
understanding that emerges from the theory of institutional commensalism,20 which
is deemed relevant also towards bridging this particular public/private divide.
2 Public Farm Animal Welfare Standards of the World

Organisation for Animal Health (OIE)
The OIE has had a mandate to develop animal welfare standards since 2002. The
then Ad hoc Group on animal welfare believed the OIE to be well placed to provide
international leadership on animal welfare. It noted the OIE’s 75-year history of
achievement as the international reference organisation for animal health with an
established infrastructure and international recognition, acknowledging the essen-
tial link between animal health and animal welfare.21 Animal welfare was consid-
ered to be ‘a complex, multi-faceted public policy issue which includes important
scientific, ethical, economic and political dimensions’.22 The International Com-
mittee of the OIE, accordingly, established a permanent OIE Working Group on
Animal Welfare.23 Science-based international animal welfare standards24 have
been adopted by the Member Countries of the OIE,25 acting in accordance with that
organisation’s democratic and transparent procedures.26 It is, however, conceivable
that developing and developed countries with diverse economies, cultures and
environmental conditions reach consensus in accordance with the lowest common
denominator. Several chapters of the OIE TAHC address the welfare of species-
specific animal production systems, namely beef cattle,27 broiler chickens28 and,
newly, dairy cattle,29 and, generally, transport30 and slaughter of terrestrial
animals.31
20
See Daugbjerg and Botterill (2012), pp. 307, 314, and 315.
21
World Organisation for Animal Health (OIE) (2002).
22
World Organisation for Animal Health (OIE) (2004).
23
World Organisation for Animal Health (OIE) (2004), Consideration 2.
24
‘The scientific basis of OIE animal welfare standards provides the foundation for creating a
consensus amongst all OIE Member Countries to support their adoption.’ World Organisation for
Animal Health (OIE) (2015b) Animal Welfare Fact Sheet.
25
Currently 180 OIE Member Countries, http://www.oie.int/about-us/. Accessed 27 Aug 2016.
26
There is only one pathway for adoption of OIE standards, i.e. approval by the World Assembly
of Delegates meeting annually at the OIE General Session. World Organisation for Animal Health
(OIE) (2016d)
27
OIE TAHC (2016a), Chapter 7.9.
28
29
30
OIE TAHC (2016a), Chapters 7.2, 7.3, 7.4.
31
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Animal welfare, according to the OIE, means how an animal32 is coping with the
conditions in which it lives. An animal is in a good state of welfare if (as indicated
by scientific evidence) it is healthy, comfortable, well nourished, safe, able to
express innate behaviour and not suffering from unpleasant states such as pain,
fear and distress. Good animal welfare requires disease prevention and appropriate
veterinary treatment, shelter, management and nutrition, humane handling and
humane slaughter or killing. Animal welfare refers to the state of the animal.33
The OIE TAHC also contains guiding principles for animal welfare, understand-
ing that there is a critical relationship between animal health and animal welfare
and emphasising that the internationally recognised ‘five freedoms’ (freedom from
hunger, thirst and malnutrition; freedom from fear and distress; freedom from
physical and thermal discomfort; freedom from pain, injury and disease; and
freedom to express normal patterns of behaviour) provide valuable guidance in
animal welfare. These principles explain that the scientific assessment of animal
welfare involves diverse elements that need to be considered together and that
selecting and weighing these elements often involve value-based assumptions that
should be made as explicit as possible. They recognise that the use of animals in
agriculture makes a major contribution to the well-being of people, carrying with it
an ethical responsibility to ensure the welfare of such animals to the greatest extent
practicable, together with the fact that improvements in farm animal welfare can
often improve productivity and food safety and hence lead to economic benefits.
These principles are premised on the reasoning that equivalent outcomes based on
performance criteria, rather than identical systems based on design criteria, form
the basis for comparison of animal welfare standards and recommendations.34
The scientific assessment of animal welfare, which has progressed rapidly in
recent years, constitutes the basis of these recommendations.35 Accordingly, some
measures of animal welfare involve assessing the degree of impaired functioning
associated with injury, disease and malnutrition; other measures provide informa-
tion on animals’ needs and affective states such as hunger, pain and fear, often by
measuring the strength of animals’ preferences, motivations and aversions; others
assess the physiological, behavioural and immunological changes or effects that
animals show in response to various challenges. Such measures are deemed capable
of leading to criteria and indicators that help to evaluate how different methods of
managing animals influence their welfare.
32
Animal means a mammal, bird or bee—OIE TAHC (2016b), Glossary for the purposes of the
Terrestrial Code.
33
The treatment that an animal receives is covered by other terms such as animal care, animal
husbandry, and humane treatment: OIE TAHC (2016c), Chapter 7.1.
34
OIE TAHC (2016c), Article 7.1.2. Guiding Principles for animal welfare, OIE TAHC
Chapter 7.1.
35
OIE TAHC (2016c), Article 7.1.3. Scientific basis for recommendations, OIE TAHC
Chapter 7.1.
186 D. Ryland
General principles for the welfare of animals in livestock production systems

have also been agreed,36 the significance of which—for guidance—lies in the fact
that there are no species-specific standards in the OIE TAHC currently that address
the welfare of pig production systems, for example.
The expectation that Member Countries implement all the standards in the
TAHC, including animal welfare, was clarified and documented in the outcomes
of the 82nd General Session of the OIE in 2014.37 In the OIE Animal Working
Group meeting, Dr. Thiermann, President of the Terrestrial Animal Health Stan-
dards Commission, observed that in the absence of agreed governmental animal
welfare standards, industries are entitled to set private standards. He continued:
‘Nonetheless, when OIE standards exist, those private standards should take note of
OIE standards.’38 From a private perspective, Michael Robach deemed there to be
‘no explicit recognition by the World Trade Organization (WTO) of the
OIE’s international standards for animal welfare’.39 It should be stated that the
Agreement on the Application of Sanitary and Phytosanitary Measures does,
however, make explicit reference to the international standards of the OIE
36
(1) Genetic selection should always take into account the health and welfare of animals.
(2) Animals chosen for introduction into new environments should be suited to the local climate
and able to adapt to local diseases, parasites and nutrition. (3) The physical environment, including
the substrate (walking surface, resting surface, etc.), should be suited to the species so as to
minimise risk of injury and transmission of diseases or parasites to animals. (4) The physical
environment should allow comfortable resting, safe and comfortable movement including normal
postural changes, and the opportunity to perform types of natural behaviour that animals are
motivated to perform. (5) Social grouping of animals should be managed to allow positive social
behaviour and minimise injury, distress and chronic fear. (6) For housed animals, air quality,
temperature and humidity should support good animal health and not be aversive. Where extreme
conditions occur, animals should not be prevented from using their natural methods of thermos-
regulation. (7) Animals should have access to sufficient feed and water, suited to the animal’s age
and needs, to maintain normal health and productivity and to prevent prolonged hunger, thirst,
malnutrition or dehydration. (8) Diseases and parasites should be prevented and controlled as
much as possible through good management practices. Animals with serious health problems
should be isolated and treated promptly or killed humanely if treatment is not feasible or recovery
is unlikely. (9) Where painful procedures cannot be avoided, the resulting pain should be managed
to the extent that available methods allow. (10) The handling of animals should foster a positive
relationship between humans and animals and should not cause injury, panic, lasting fear or
avoidable stress. (11) Owners and handlers should have sufficient skill and knowledge to ensure
that animals are treated in accordance with these principles. OIE TAHC (2016c), Chapter 7.1.4.,
General principles for the welfare of animals in livestock production systems.
37
Report of the Thirteenth Meeting of the OIE Animal Welfare Working Group (2014), at section
2 The Working Group noted that the draft sixth OIE Strategic Plan 2016–2020 circulated for
Member Countries comment includes animal welfare as a mainstream OIE activity.
38
Report of the Eleventh Meeting of the OIE Animal Welfare Working Group (2012), section
8, at p. 9.
39
Robach (2010), pp. 1–6, at summary, section 2. Representative of Safe Supply of Affordable
Food Everywhere (SSAFE), invited by the OIE.
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TAHC.40 Certain sector-specific animal welfare standards and guiding principles

have evolved subsequently and form a part of the OIE TAHC.41 Michael Robach
did acknowledge the recognition accorded to the OIE ‘as the unique organization
developing global animal welfare standards for international trade’.42 On the part of
the European Union (EU), Dr. Andrea Gavinelli has confirmed the continuing
European Commission support for the OIE’s standard-setting work and for the
implementation of the OIE animal welfare standards.43
3 The Emergence of Private Animal Welfare Standard

Schemes: Drivers and Implications
Research undertaken for the Organisation for Economic Cooperation and Devel-
opment (OECD) identified three key developments44 that have taken place recently
in the food sector, namely resort to voluntary management systems for monitoring
product and process attributes in the private sector,45 coalitions of firms setting
private standards and the increased use of private global business-to-business
standards between retailers and suppliers. Key drivers of private standard schemes,
according to Linda Fulponi, have been ‘[m]ajor retailer firms’ reputation in terms of
safety and quality as well as developments in the legal and institutional frameworks
for food safety’.46 The respective food crises, for example bovine spongiform
encephalopathy (BSE), salmonella, dioxins, avian influenza, and the ensuing leg-
islative regimes pursuant to which retailers are required to exercise due diligence
concerning the safety of food47 led to the development of private retailer food
safety assurance schemes.48 This movement coincided with the larger supermarket
40
Agreement on the Application of Sanitary and Phytosanitary Measures, Recital 6 to the Pream-
ble, Art. 1.2, 1.3, Annex A3(b). See Scott (2007), pp. 244–246, 248–250, 313, 314, and 321. See
also Botterill and Daugbjerg (2011), p. 497.
41
See Botterill and Daugbjerg (2011), p. 499.
42
Robach (2010), at Summary, section 2.
43
Report of the Tenth Meeting of the OIE Animal Welfare Working Group (2011c), point g.
The Council of Europe, the OIE and the EU commit to providing mutual support and
cooperating on all aspects of animal welfare: Council of Europe (2006) Joint Declaration on
Animal Welfare in Europe: achievements and future prospects. Strasbourg. The important link
between animal welfare and the need for adequate scientific and veterinary expertise is stressed in
the document.
44
OECD (2006), paras 13–15.
45
An inventory compiled for the European Commission identified over 400 diverse voluntary
certification schemes for agricultural products and foodstuffs marketed in the EU Member States:
Study conducted for Areté for DG AGRI (2010).
46
WTO (2007c), para 2.
47
See MacMaoláin (2015), pp. 117–148.
48
See Burrell (2011), p. 253; WTO (2007a), para 4.
188 D. Ryland
retailers gaining greater market share49 and the development of supermarket-own-

named premium brands, which in turn fuelled fears of reputational loss and loss of
revenue from failure to retain consumer loyalty in the event of a food recall.50
With the infrastructure in place, retailers have expanded their private standard
and certification schemes horizontally so as to encompass not only safety but also
quality food assurance schemes—animal welfare quality being one such assur-
ance.51 Good agricultural practice,52 in a growing number of private standard
schemes, includes additional on-farm stipulations relating to farm animal welfare.53
Questions arise as to how far the standards are, in fact, private and as to the extent to
which private quality agri-food standards are specific to animal welfare.
The consequential emergence of private animal welfare assurance schemes
would apparently signal the fact that retailers are acting to assuage consumer
credence demands for agricultural produce emanating from farm animals that
have experienced a high standard of welfare.54 This rationalisation should be
qualified by further consideration of the potential for private standards of animal
welfare to be adopted in order to engender market differentiation and encapsulation
of market share.55
Ownership of the standard scheme is one differentiating factor, as is whether it is
an individual scheme or a collective scheme and whether it applies nationally or
internationally.56 Linda Fulponi has commented that ‘[m]any of the voluntary
standards schemes are becoming global standards as the food system becomes
interlinked across the world’.57 Three private animal welfare standards schemes
have been selected to ascertain the nature and depth attributed to increasing
influential consumer ethical concerns for animal welfare and the processes by
which animals become food products for human consumption. This choice has
been influenced by the differing missions of each of these private institutions.
49
‘The structural power of retail corporations today reaches beyond the question of market power.
This structural power is also reflected in the development of rule-setting power, i.e. private
standards.’ Fuchs et al. (2009), p. 55.
50
See Fagotto (2014), pp. 90 and 91; See Daugbjerg and Botterill (2012), p. 312.
51
See Burrell (2011), p. 252.
52
Defined as ‘practices that address environmental, economic and social sustainability for on-farm
processes, and result in safe and quality food and non-food agricultural products’: Food and
Agricultural Organization (FAO) of the United Nations, www.fao.org/prods/gap/. Accessed
9 July 2015.
53
54
‘This trend could be broadly described as the rise of the ethical consumer who not only is
concerned about the physical content of the food he/she consumes but also about the conditions
under which it is produced.’ Daugbjerg and Botterill (2012), p. 308.
55
See, generally, Henson and Reardon (2005), p. 245.
56
57
Fulponi (2006), p. 4.
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3.1 Marks and Spencer ‘Farming for the Future’
Marks and Spencer, a multinational retailer, has its own independently certified
farm assurance animal welfare standards. Marks and Spencer’s animal welfare farm
assurance scheme, ‘Farming for the Future’, is an example of a private corporate
business-to-business animal welfare standard.58 Its animal welfare credentials are
not communicated directly to the consumer by way of a separate label to that effect
appended to its own-named produce. Its animal welfare mission is to ensure that the
highest practical and commercially viable standards of farm animal welfare are
adopted and implemented, and continuously improved, in Marks and Spencer’s
produce supply chains (UK and globally), on the farm, during transport and at the
place of slaughter. It is its policy to use the independent advice from its strategic
farm animal welfare partner, ‘Farm Animal Initiative’, and animal welfare
non-governmental organisations, to scrutinise its policies and specifications to
ensure that leading standards are met and maintained.59 In 2013, Marks and
Spencer was awarded the Best Retailer and Best Performing Retailer awards by
Compassion in World Farming.60 It was the first retailer to sell 100% free-range
eggs in 1997, and in 2002 it introduced the policy of only using free-range eggs in
all of its own brand food. It chooses not to sell foie-gras or its by-products and
prohibited the use of growth-promoting antibiotics in the diets of animals used in its
food prior to legislative requirements. Marks and Spencer food is not made with
genetically modified (GM) ingredients or the use of nanotechnology.61 Marks and
Spencer, in an exercise in corporate social responsibility, may be reaching out to its
consumers and providers with the objective of demonstrating its separate corporate
animal welfare achievements.
3.2 The Royal Society for the Prevention of Cruelty

to Animals (RSPCA)
‘RSPCA Assured’ animal welfare standards62 (the new consumer-facing name for
‘Freedom Food’)63 are those of a non-governmental charity and are an example of a
58
Marks and Spencer (2014).
59
Marks and Spencer (2014).
60
http://www.ciwf.org.uk/our-impact/food-business-programme/good-farm-animal-welfare-
awards/. Accessed 9 July 2015.
61
It changed its ‘requirements in April 2013 to no longer stipulate non-GM animal feeds, it having
become apparent that maintaining a non-GM animal feed policy was becoming increasingly
difficult, due to complexities of segregation through the shipping process’. Marks and Spencer,
Quality and Innovation, Plan A. http://corporate.marksandspencer.com/plan-a/policies-and-consul
tations/policies/food. Accessed 23 Feb 2015.
62
RSPCA (2015).
63
The Freedom Food brand will continue for business to business activity and will still be the name of
the Limited company. The Freedom Food Label will still appear on some products until May 2016.
190 D. Ryland
business-to-consumer standard. This scheme, which is communicated to consumers

via the RSPCA Assured product label, focuses purely on animal welfare. The
central aim of the RSPCA Assured animal welfare standards is to improve animal
welfare and to increase the proportion of farm animals reared under higher animal
welfare systems in the United Kingdom (UK).
The RSPCA animal welfare assurance scheme achieves its objectives by creat-
ing a commercial incentive for producers and retailers. It assesses suppliers’
credence, namely farms, hauliers and abattoirs, by reference to its higher stan-
dards.64 These private animal welfare standards of this animal welfare
non-governmental organisation operate without a profit motive,65 the RSPCA
being solely concerned with the interests of animals’ well-being.
Its RSPCA Assured animal welfare standards have evolved in application to an
increasing number of farm animal species, inclusive of, inter alia, beef and dairy cattle,
pigs, sheep, turkeys and ducks, in the absence of public minimum animal welfare
norms. The RSPCA’s welfare standards ‘are based on leading scientific and practical
industry experience’.66 RSPCA Assured is ‘the only scheme in Europe dedicated to
farm animal welfare and has been acknowledged as a higher level scheme by the UK
government’.67 Questions arise, potentially, as to the extent to which the assured
standards are private or higher than baseline legislative animal welfare norms.
3.3 GLOBALG.A.P.
The EU initiative of EUREPG.A.P., set up by European retailers in 1997, has since

2007 become GLOBALG.A.P.,68 the private collective69 standard of good agricul-
tural practice. GLOBALG.A.P. is a global partnership of voluntary members for the
certification of production processes of agricultural products around the world.70
The GLOBALG.A.P. Integrated Farm Assurance (IFA) Standard is designed to
reassure consumers how food is produced on the farm; animal welfare is one of its
64
McNair Report (2013).
65
Freedom Food Limited is a company with charitable status, the sole shareholder of which is the
RSPCA. McNair Report (2013), para 11.
66
http://www.freedomfood.co.uk/industry/rspca-welfare-standards. Accessed 10 July 2015.
67
http://freedomfood.co.uk/aboutus. Accessed 10 July 2015.
68
‘In 1997, a group of supermarkets, food retailers, non-governmental organisations (NGOs),
consumer groups and others formed the Euro Retailer Produce Working Group (EUREP). EUREP
established a system of good agricultural practice (GAP) which went beyond simple food safety
concerns.’ Botterill and Daugbjerg (2011), p. 491. See also Hachez and Wouters (2011),
pp. 677–710; Naiki (2014), pp. 137–166.
69
See Tallontire (2007), p. 777.
70
The GLOBALG.A.P. system applies in over 100 countries in five continents, with over 1400
trained inspectors and auditors working for more than 140 accredited certification bodies. http://
www.globalgap.org/uk_en/what-we-do/the-gg-system/integrity-program. Accessed 10 July 2015.
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four objectives. It is a business-to-business label open to any fee-paying organisa-

tion agreeing to its terms of reference.71 Many supermarket chains have joined
GLOBALG.A.P., including Marks and Spencer. GLOBALG.A.P. is governed by a
board of elected producer and retailer representatives and headed by an independent
chairman.72
The GLOBALG.A.P. IFA Certificate is built on a system of modules that enable
producers to become certified for several sub-scopes in one audit. The IFA Standard
consists of Control Points and Compliance Criteria (CPCC), which clearly define
the requirements for achieving the quality standard required by GLOBALG.A.P., as
well as General Regulations, which, for example, lay down the criteria for compli-
ance and private sanctions for non-compliance. The General Regulations stipulate
that to achieve and maintain GLOBALG.A.P. Certification, out of the Scheme’s
CPCC, the following are compulsory: 100% compliance with all applicable ‘Major
Must’ and ‘Quality Management System’ control points and 95% compliance with
‘Minor Must’ control points. There are no minimum requirements to comply with
‘Recommendations’.73
The GLOBALG.A.P. IFA Certificate covers specifically, inter alia, livestock
production.74 The CPCC are also modular based, consisting of the All Farm Base
Module, the Scope Module and the Sub-scope Module[s]. The All Farm Base
Module is the foundation of all standards and consists of all the requirements that
producers must first comply with to gain certification. The Scope Module defines
clear criteria based on the different food production sectors, one of which is
Livestock. GLOBALG.A.P. also provides a checklist for each module to help
producers better prepare their farms and make the necessary changes before a
certification body inspector performs an audit or inspection.75 The Scope,
i.e. Livestock, Module is coupled with the Sub-scope[s] that a producer or group
of producers applies for. A poultry producer, for example, must comply with the All
Farm Base Module, the Livestock Scope Module and the Poultry CPCC to receive a
GLOBALG.A.P. Poultry Standard Certificate. There are six Sub-scopes, namely,
cattle and sheep, dairy, calf and young beef, pigs, poultry and turkeys. Livestock
producers are also required to source their compound feed from GLOBALG.A.P.
Certified compound feed manufacturers.76
71
http://www.globalgap.org/export/sites/default/.content/.galleries/documents/141027_gg_mem
bership_application_form_en.pdf. Accessed 10 July 2015.
72
http://www.globalgap.org/uk_en/who-we-are/governance/. Accessed 10 July 2015.
73
GLOBALG.A.P. (2016b) General Regulations GR V5.0_2 July 16, Part I – General Require-
ments, point 6.2. The new IFA Version 5 came into force on 1 July 2015—mandatory from 1 July
2016. IFA V4 certificates remain valid until June 2017.
74
GLOBALG.A.P. (2016a) Livestock Control Points and Compliance Criteria (CPCC),
Version V, published in July 2016. See also, GLOBALG.A.P. (2015) General Regulations
Livestock Rules V5.0_Sep 15.
75
http://www.globalgap.org/uk_en/what-we-do/globalg.a.p.-certification/globalg.a.p./. Accessed
27 Aug 2016.
76
http://www.globalgap.org/uk_en/for-producers/livestock/. Accessed 27 Aug 2016.
192 D. Ryland
In addition GLOBALG.A.P. offers voluntary add-on modules in order to

enhance certification, one of which is the GLOBALG.A.P. ‘Animal Welfare
Add-On’. The GLOBALG.A.P. Stakeholder Committee on Animal Welfare
worked from 2011 to 2013 on the establishment of criteria for animal welfare,
which ‘go beyond legal requirements’ and which define the contents of comple-
mentary and voluntary add-on certifications for livestock producers. There are two
sets of criteria, namely an animal welfare add-on module for poultry/broiler
chicken and an animal welfare add-on module for pigs/finishers. The developed
criteria are ‘science-based, feasible, economically viable and auditable’.77 On
examination of the CPCC applicable to these two add-on modules, there is a
mixture of ‘Major must’ requirements and mere ‘Recommendations’, which
deserve review as to their specific animal welfare credentials beyond legislative
norms; Recommendations carry no obligation to comply.
Carsten Daugbjerg and Linda Botterill have evaluated the emergence of the
private collective global scheme of GLOBALG.A.P., with its embodiment ‘of
broadly postmaterialistic values that suggest that food purchasing and consumption
are also social, ethical and perhaps even political activities’.78 Such issues that
would matter to the post-materialistic consumer, they considered, include the
welfare of animals kept for food production, both those intended for slaughter
and animals such as dairy cows and layer hens.79
It could be questioned as to whether animal welfare for animal welfare sake is
the motivating force behind the emergence of such private standard schemes.
‘Private standards are typically driven by strategic considerations at the firm
level, product differentiation in the pursuit of market share, for example’,80 to
‘increase product sourcing across the globe’81 or to ‘control the value/supply
chain’.82
One school of thought recognises the added value of global collective private
animal welfare standard schemes as being facilitative of farmers/producers
collecting a premium price for raised animal welfare standard produce.83 Also,
harmonised standards in a collective private scheme would go some way towards
alleviating the costs incurred in having to comply with a number of different
77
http://www.globalgap.org/uk_en/what-we-do/globalg.a.p.-certification/globalg.a.p.-00001/Ani
mal-Welfare/. Accessed 10 July 2015.
78
As opposed to the ‘instrumental value of food consumption in which food is seen as a commodity
to be traded in accordance with international trade rules’. Daugbjerg and Botterill (2012), p. 307.
79
80
Korinek et al. (2008), p. 5, note 1.
81
OECD (2006), para 3.
82
Cafaggi and Renda (2012), p. 6.
83
See Fagotto (2014), p. 85, citing Henson and Humphrey (2009). Mr. Per Olson, chief veterinary
advisor, noted on behalf of the International Federation for Agricultural Producers (IFAP) that
private standards for animal welfare may offer opportunities to raise farmers’ income. World
Organisation for Animal Health (OIE) (2010a), section 7; See Naiki (2014), p. 143, citing Cashore
et al. (2004), p. 23.
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operative schemes to gain access to each respective portion of the market. Concerns
have emerged ‘about the costs of complying with private regulation84 which, while
nominally voluntary, is becoming more pervasive in international agri-food mar-
kets’.85 Linda Fulponi’s research suggests that compliance with private voluntary
standard schemes is becoming increasingly mandatory for accessing lead retailer
supply chains and that small holders are subject to an increased risk of exclusion
from the food chains of lead retailers because of their inability to comply with
private voluntary schemes.86 Particularly in developing countries, producers of
agri-food products have increasingly faced strong pressure to comply with the
private standards of supermarkets and retailers that dominate the global agri-food
market with large market share.87 This point is underlined in the WTO.88
For the consumer—how high are the respective private farm assurance stan-
dards? According to Jane Korinek et al., ‘[w]hile private standards in the agri-food
sector are based on government standards, they may also exceed governmental
requirements’.89 Or do they duplicate, in fact, the legal minimum animal welfare
norms with which compliance is required and at extra cost?90 The question as to
whether the standards are all science based or partly market driven, especially
where no legal requirements exist and the private, purportedly higher, standards are
in fact substitutes, leads to the overarching question as to whether a regulatory
framework is called for. Perhaps a pre-emptive strategy, reining in the potential to
use standardisation solely as a marketing tool/food chain control mechanism by
private animal welfare certification schemes, should start to be conceived. After all,
private standard schemes may be self-perpetuating. Doris Fuchs et al. caution that
‘[p]rivate standards are not only a manifestation of retailers’ structural and discur-
sive power, but a means to extend it’.91
It would not be possible to address all of the implications of private animal
welfare assurance schemes in this chapter, which simply highlights, therefore, some
84
Particularly for small and medium sized enterprises and farmers in developing countries and the
requirements of some private schemes to use only specified certification bodies, for example.
WTO (2007a), para 14, Table 2.
85
86
WTO (2007c), para 21. The International Federation for Agricultural Producers (IFAP) also
voiced concerns that private standards could lead to the exclusion of small-scale producers in
developing countries. World Organisation for Animal Health (OIE) (2010a); See Fagotto (2014),
p. 85, citing Hatanaka et al. (2005).
87
See Henson and Reardon (2005), pp. 250–251.
88
‘[T]he retailer scheme [individual or collective] may be de facto applied as the industry norm by
all actors in the supply chain. Thus the choice of whether or not to comply with a voluntary
standard becomes a choice between compliance or exit from the market.’ WTO (2007a), para 9.
89
Korinek et al. (2008), para 7.
90
Scannell (2008), at sections 2, 4.
91
Fuchs et al. (2009), p. 64.
194 D. Ryland
of the contemporary concerns92 arising from the growth of private animal welfare
standard schemes.
Specifically with significance, one key question that arises from the OECD
research is ‘[i]n which area is there a need for collaboration to meet the needs of
the food industry/retailers and government responsibilities towards society?’93
Linda Botterill and Carsten Daugbjerg underline the contemporary relevance of
research into global private governance arrangements,94 citing David Vogel’s
work95 in which he identifies one of the key questions in need of more research
as being ‘the responses of governments to private global standards schemes and
how such schemes interact with domestic and intergovernmental regulatory poli-
cies’. Elena Fagotto acknowledges the potential for increased ‘collaboration and
interdependence among firms, government and civil society’ to ‘improve the
governance and effectiveness of private regulation’.96
Scholars increasingly question whether the two types of governance systems,
public and private, and at global level, can be considered to be complementary, with
one reinforcing the other, or whether they coexist in competition97 with the
potential to impact negatively upon domestic economies.98 One avenue would lie,
therefore, in an examination of the feasibility of the process of coordinating
relations with and between coexisting public and private global animal welfare
standard schemes and in assessing current and potential future implications.99
92
Fuchs and Kalfagianni ‘suggest that governmental efforts should pay particular attention to those
sectors where the poor and marginal groups of society are negatively affected by the operation of
private authority’. (2010), pp. 1–34, at 24, 25. See also Fuchs et al. (2009), pp. 75–83.
93
OECD (2006), para 95.
94
95
Vogel (2008), pp. 261–282.
96
Fagotto (2014), p. 95.
97
See Burrell (2011), pp. 264 and 265; Fagotto (2014), p. 83; Naiki (2014), pp. 137 and 146.
98
‘Globalisation, and its impact on domestic economies, goes well beyond formal rules emanating
from international organisations and agreements. In recent years, informal international regulatory
structures have arisen alongside intergovernmental structures, and these can have a profound
impact on the operation of the domestic economies.’ Botterill and Daugbjerg (2011), p. 489.
99
‘A key requirement for efficient longer-term coexistence between public and private standards is
that there should be better coordination between them.’ Burrell (2011), p. 265. See also Vogel
(2010), p. 83, where he states: ‘the future effectiveness of global business regulation depends on
the extent to which private and public authority, civil and government regulation, and soft and hard
law, reinforce one another’.
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4 Potential to Conflict? Public/Private Interface Through

Cooperation Agreements
Concern has been voiced about private standards in the OIE and a Resolution
adopted on the role of private standards in animal welfare.100 OIE Member Coun-
tries consider that, while private standards can be beneficial in promoting good
practice and supporting producers to meet public standards, it is of major concern to
OIE members that some private standards for animal welfare relating to animal
products have the potential to conflict with OIE standards. Noting that formal
linkages and channels of communication between private standard-setting organi-
sations and the OIE have so far been limited101 and could be strengthened, the
World Assembly of Delegates of the OIE recommended, inter alia, to promote the
implementation of the OIE animal welfare standards as reference standards that
apply globally.102 It further recommended that the Director General continue to
provide advice on the steps that may be available to advocate that private animal
welfare standards, where used, are consistent with and do not conflict with those of
the OIE.103 Also that he maintain and strengthen appropriate links and dialogue
with relevant global private standard-setting bodies and global private industry
organisations with the aim of allowing compatibility of private standards with OIE
standards while ensuring communications with national governments and con-
sumers.104 Additionally, recommendations were adopted by the OIE Assembly to
encourage global private standard-setting bodies to promote the use of official
standards as benchmarks against which private standards are referenced for inter-
national trade in animals, and animal products, to encourage global private
standard-setting bodies to strengthen or develop transparent mechanisms and to
work toward increased harmonisation with public standards and transparency of
private standards.105
The OIE has made it clear106 that its standards are developed on the basis of a
scientific risk assessment and adopted through the democratic procedures of the
OIE and that it rejects private animal welfare standards that lack a proper scientific
basis. It submits that, in contrast, private standards, which are mainly based on
100
WTO/OIE Resolution No. 26 (2010d) Roles of public and private standards in animal health
and animal welfare. Adopted by the World Assembly of Delegates of the OIE on 27 May 2010.
101
The OIE has signed official Agreements and works in close collaboration with the international
industry organisations such as International Federation of Agricultural Producers (IFAP), Inter-
national Dairy Federation (IDF), International Meat Secretariat (IMS), International Egg Com-
mission (IEC), International Poultry Council (IPC) and Safe Supply of Affordable Food
Everywhere (SSAFE). WTO/OIE Resolution No. 26 (2010d), Consideration 8.
102
WTO/OIE Resolution No. 26 (2010d), Recommendation 4.
103
104
105
WTO/OIE Resolution No. 26 (2010d), Recommendations 10 and 11, respectively.
106
WTO (2008).
196 D. Ryland
commercial quality schemes, are developed to meet the needs of commercial

parties (especially supermarkets) and consumers and tend towards a
non-scientific, zero-risk, marketing approach. How correct is this understanding?
A documentary comparison is overdue.
In the discussions of the OIE Working Group on Animal Welfare, Dr. Kahn107
alluded to the different opinions of developing and of developed countries
concerning private standards.108 Dr. Gavinelli109 commented that to reinforce the
role of the animal welfare standards foreseen by the OIE at international level, it
would be advisable to further develop their scientific background and that, in this
way, the role of the OIE standards versus the requirements established on a private
basis could become more universally recognised.110
According to Michael Robach, the concerns that private standards differ from,
and may be more restrictive than, public standards ‘arise because private standards
are sometimes prescriptive while public standards tend to be outcome based’.111
Meeting after the adoption of Resolution 26, the OIE discussed the next steps to
be taken towards the implementation of its recommendations concerning private
standards,112 noting that the global private standard-setting bodies, such as the
Global Food Safety Authority (GFSI) and GLOBALG.A.P., were well placed to
foster and facilitate such collaborative undertakings. The meeting participants113
suggested to identify relevant global standard-setting organisations with which the
OIE could strengthen appropriate links; identify mechanisms for collaboration;
define common terminology; define recognised private standard and marketing
standard and schemes (sic) and animal welfare standards; give OIE standards to a
working group to translate into benchmarking requirements; explore complemen-
tarity of OIE and global private standard-setting organisations in standard setting
and implementation and compliance. The need for a communication strategy was
noted, as were important international certification bodies, including, for example,
107
Head of International Trade, OIE.
108
The OIE convened an expert ad hoc Group on private standards, which developed a question-
naire that was sent to all OIE Members and to relevant organisations having an official agreement
with the OIE. Nearly all developed countries (89%) could see benefits of private animal welfare
standards. If the responses of the then 27 EU Member States are excluded, 76% of total respon-
dents agreed with statement that private standards for animal welfare create or may create
problems. World Organisation for Animal Health (OIE) (2010c).
109
Head of Unit, D5 Animal Welfare, European Commission.
110
Report of the Ninth Meeting of the OIE Working Group on Animal Welfare (2010e).
111
Robach (2010), at section 4.
112
World Organisation for Animal Health (OIE) (2010b).
113
Included Dr. Carlos Correa Messuti, President of the OIE; Dr. Bernard Vallat, Directeur
General, OIE; Ms. Sylvie Coulon, International Issues DG Sanco, European Commission; Mrs.
Catherine Francois, Director, Global Food Safety Initiative (GFSI); Mr. Jean-François Legrand,
Safe Supply of Affordable Food Everywhere (SSAFE) Representative; Mr. Beet Urlings, Board
Member, GLOBALG.A.P.; Dr. Sarah Kahn, Head OIE International Trade Department.
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the International Organization for Standardization (ISO)114 and the International

Accreditation Forum (IAF).115 Further suggestions were made by the OIE partic-
ipating Members to assess the state of the problem with certification association
costs; explore collaboration in capacity building, working-level collaboration in the
standard-setting process of agricultural practices and input at advisory board level;
share information for better transparency; harmonise with public standards and
possible collaboration at regional level; and, finally, continue to pursue the devel-
opment of official agreements, starting with GLOBALG.A.P.116 and GFSI, using as
a starting model the agreement between OIE and Safe Supply of Affordable Food
Everywhere (SSAFE).
4.1 OIE and SSAFE
The cooperation agreement between the OIE and SSAFE117 provides that each
party will invite the other to participate as an observer in its meetings where matters
of mutual interest may arise and that SSAFE will provide scientific references and
names of experts for consideration by the OIE when reviewing existing, or devel-
oping new, international standards. The Parties agree to cooperate further through
both formal and informal consultations on issues of common interest.
SSAFE is a non-profit-membership-driven organisation that aims to foster the
continuous improvement and global acceptance of internationally recognised food
protection systems and standards through public–private partnerships. It engages in
dialogue and partnerships with stakeholders, including intergovernmental organi-
sations, government agencies, academia and non-governmental organisations
(NGOs), also with the International Organization for Standardization (ISO). Its
activities have focused on improving the implementation of food protection systems
and standards, with special emphasis on supporting the development of capabilities
and capacity across the food sector in developing and emerging markets.118
114
‘ISO is an independent, non-governmental international organization with a membership of
162 national standards bodies. Through its members, it brings together experts to share knowledge
and develop voluntary, consensus-based, market relevant international standards that support
innovation and provide solutions to global challenges.’ http://www.iso.org/iso/home/about.htm.
Accessed 27 Sept 2016.
115
‘The world association of Conformity Assessment Accreditation Bodies and other bodies
interested in conformity assessment in the fields of management systems, products, services,
personnel and other similar programmes of conformity assessment. Its primary function is to
develop a single worldwide program of conformity assessment which reduces risk for business and
its customers by assuring them that accredited certificates may be relied upon.’ http://www.iaf.nu/.
Accessed 27 Sept 2016.
116
Emphasis added.
117
World Organisation for Animal Health (OIE) (2007) Agreement between the World Organisa-
tion for Animal Health (OIE) and the Center for Animal Health and Food Safety for the Safe
Supply of Affordable Food Everywhere Initiative (SSAFE).
118
http://www.ssafe-food.org/about-ssafe. Accessed 18 Feb 2015.
198 D. Ryland
4.2 OIE and the International Organization

for Standardization (ISO)
The OIE and the ISO have entered into a cooperation agreement.119 Both Parties, the
OIE and the ISO, considered that strengthening links would facilitate and also
strengthen cooperation and collaboration between them where their respective man-
dates and activities may be of mutual interest, including but not limited to the field of
international standards and recommendations on animal health and welfare and
sanitary safety of international trade in terrestrial animals and animal products. The
Parties undertake to keep each other informed of their activities in the fields of mutual
interest, in particular where there is the potential for joint activities in the interest of
Member Countries/institutes; to meet at least annually; and to invite the other Party to
participate as an observer/liaison in meetings where matters of mutual interest may
arise. The listing of ISO committees/activities of potential interest to the OIE includes
ISO Technical Committee (TC) 34, Food Products. The listing of OIE committees/
activities of potential interest to the ISO includes the permanent Animal Welfare
Working Group and its work programme. The agreement also provides that the Parties
may decide to adopt other forms of cooperation and collaboration, in particular
promotion of the use of international standards under the mandates of the Parties.120
4.3 OIE and the Global Food Safety Initiative (GFSI)
A cooperation agreement has also been adopted between the GFSI and the OIE121
in order to strengthen cooperation and collaboration between the Parties in relation
to their respective mandates, programmes and activities, including but not limited
to standards, guidelines and recommendations on safe production and trade in food
products derived from terrestrial animals. The Parties undertake to share informa-
tion in the fields of mutual interest, in particular where there is the potential to
undertake joint activities; to meet on a regular basis; and to invite the other Party to
participate as an observer in meetings where matters of mutual interest may arise.
Furthermore, the Parties may decide to undertake other forms of cooperation, in
particular the promotion of the use of international standards under the mandates of
the Parties, and training and awareness raising in Member Countries, in particular in
developing countries.
119
World Organisation for Animal Health (OIE) (2011a). Cooperation Agreement between the
International Organization for Standardization (ISO) and the World Organisation for Animal
Health (OIE)
120
World Organisation for Animal Health (OIE) (2011a) Article 5.
121
World Organisation for Animal Health (OIE) (2011b) Cooperation Agreement between the
Global Food Safety Initiative (GFSI) and the World Organisation for Animal Health (OIE).
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4.4 GLOBALG.A.P.?
The question has to be asked why there is not such a cooperation agreement
between GLOBALG.A.P. and the OIE. When questioned, Professor Urlings,
Board Member, GLOBALG.A.P., explained that ‘an additional standard’ meant
‘a standard that is based on international standards and on science’.122 He continued
to state that GLOBALG.A.P.’s regional working groups developed regional inter-
pretations for the GLOBALG.A.P. standards and that, in his view, OIE and
GLOBALG.A.P. standards were complementary. ‘The OIE sets the international
standards directed to governments and GLOBALG.A.P. focuses on translating
international standards into standards that can be used at the farm level.’123
Michael Robach asserted that the GFSI serves as a model for public–private
cooperation on food system standards and that a similar initiative could be taken in
relation to the animal health, and animal welfare, standards developed by the
OIE.124 The GFSI was launched in 2000 to promote ‘continuous improvement in
food safety management systems to ensure confidence in the delivery of safe food
to consumers’.125 It would appear to have proven more difficult to achieve coop-
eration between the private global scheme GLOBALG.A.P. and the OIE, which can
be explained by the fact that, according to Catherine Francois, the private sector
considers animal welfare to be a competitive issue, unlike food safety.126 The threat
of any food safety outbreaks is likely to be more of an incentive to underpin private
standards with scientific evidence. In terms of food safety, the private standard
schemes ‘generally recognise the primary importance of official standards; retailers
generally agree that food safety is not a marketing issue’.127
5 . . .and Beyond: An ISO Technical Specification?
It will be recalled that the OIE/ISO cooperation agreement provided for the
eventuality of the Parties adopting other forms of cooperation and collaboration,
in particular promotion of the use of international standards under the mandates of
the Parties.128 Meeting in Kenya in April 2012, the ISO Technical Committee
34 (Food Products) agreed to the formation of a working group to consider the
122
World Organisation for Animal Health (OIE) (2010b), at section 6.7.
123
Ibid.
124
Robach (2010), at section 5.
125
http://www.mygfsi.com. Accessed 10 July 2015.
126
Mrs. Catherine Francois, Director, GFSI, World Organisation for Animal Health (OIE) (2010b),
at section 6.7.
127
World Organisation for Animal Health (OIE) (2010a), discussion at section 3.
128
World Organisation for Animal Health (OIE) (2011a) Article 5.
200 D. Ryland
next steps in the development of technical specifications on animal welfare in

primary production, transport and slaughter based on the animal welfare standards
of the OIE.129
Eurogroup for Animals (Eurogroup) noted the ISO’s intention to develop a
technical specification on animal welfare, which could potentially help in raising
animal welfare at international level. Some of Eurogroup’s members such as the
RSPCA and CIWF (UK); World Society for the Protection of Animal (NL office),
now World Animal Protection (WAP); and Humane Society International (HSI)
(US); for example, are reported to be involved in the process at national level with
their respective standardisation organisations. Eurogroup expressed support for this
development if the ISO process ends in a standardisation of the key elements that
should be included in any private standards. The proposed framework is ‘not to
conflict with OIE standards’, according to Eurogroup’s published note in which
Eurogroup agreed that ISO standards must be based on sound science. Eurogroup
recognised the need to improve the application of OIE farm animal welfare
standards in the OIE Member Countries where those standards are not presently
implemented or enforced, adding that this objective should not conflict with the
ability of private standards to go beyond the animal welfare standards of the OIE.130
The progress of the ISO’s work on an animal welfare technical specification for
food-producing animals is documented in the official reports of the OIE Animal
Welfare Working Group.131 The scope and objectives of this work, agreed in
February 2013, were expected to form the basis of a new work item proposal to
be formally considered by the ISO Technical Committee 34. Recorded under the
subheading of animal welfare and trade, the OIE Working Group on Animal
Welfare examined, inter alia, the development of the ISO technical specification
and also the private standards of EUREPG.A.P., now GLOBALG.A.P., and the
Freedom Food standards of the RSPCA. Dr. Stuardo, OIE International Trade
Department, furthermore, summarised the progress made at the fourth meeting of
the ISO/TC 34 Working Group 16 on Animal Welfare held in the OIE
Headquarters.132
At its Regional Conference on Animal Welfare and International Trade, held in
Montevideo, Uruguay,133 the OIE recommended that Member Countries in the
Americas implement OIE standards and consider the adoption of commercial
129
Report of the Eleventh Meeting of the OIE Animal Welfare Working Group (2012), section
8, p. 10.
130
Eurogroup for Animals (2012).
131
Dr. François Gary is the convenor of the ISO working group. The OIE is an observer in this
process. Report of the Twelfth Meeting of the OIE Animal Welfare Working Group (2013a),
section 9, p. 6.
132
Report of the Thirteenth Meeting of the OIE Animal Welfare Working Group (2014), section
11, p. 6.
133
Where Technical specifications developed by the private sector, including the ISO, EurepG.A.
P., RSPCA (Freedom Food) and the Global Animal Partnership among others, and their relation-
ship with the OIE standards and national regulations of the Veterinary Services, were discussed.
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standards in animal welfare developed by the private sector (including ISO stan-
dards, if adopted) that do not conflict with OIE standards.134 At that Conference,
Dr. Gary explained that, for the purpose of animal welfare, ISO tools and the OIE
tools are complementary in that the OIE produces science-based international
standards and the ISO develops practical tools for helping organisations to imple-
ment OIE TAHC standards. This is especially important for small and medium-size
farms or companies and in developing countries, he stated, adding that the devel-
opment of an ISO technical specification would provide opportunities for capacity
building to facilitate the implementation of the OIE TAHC. He specified that it
would facilitate the integration of animal welfare principles in business-to-business
relations and provide guidance for the integration and mutual recognition of
additional provisions from public or private standards and relevant legislation, on
the condition that they are consistent, and do not conflict, with those of the OIE
TAHC. The scope of this ISO technical specification would apply to terrestrial
animals bred or kept for the production of food and be limited to the topics for
which a technical chapter has been adopted in the OIE, Dr. Gary indicated. He
added that additional species or sector-specific requirements would be addressed
when OIE technical chapters for additional species were adopted.135
Referring to the proposed ISO technical specification for animal welfare, SSAFE
explains that ensuring appropriate care and well-being of food-producing animals is
a basic expectation of consumers across cultures and geographies, yet different
perspectives exist between markets on exact practices needed to ensure the humane
treatment of animals.136 The objective of the prospective ISO technical specifica-
tion, SSAFE states, is to foster the implementation of the official animal welfare
standards established by the OIE across the food supply chain, there being no
globally accepted protocol to implement OIE animal welfare standards at the
production level in a manner that respects production differences while achieving
the same welfare outcome. SSAFE emphasises that compliance with OIE standards
would establish a framework for all scientific outcome-based animal welfare
schemes to fit under, thus eliminating duplication of efforts. Confirming relations
between the OIE and the ISO, SSAFE envisages that the ISO process will deliver a
technical specification that is simple and easy to apply on small and medium-size
farms that do not have the capacity to develop their own animal welfare system to
meet OIE standards.137
134
World Organisation for Animal Health (OIE) (2013b, c): Regional Conference on Animal
Welfare and International Trade, Montevideo, Uruguay, 17–18 October 2013.
135
World Organisation for Animal Health (OIE) (2013d) Book of Abstracts: International Stan-
dards Organization (ISO) Technical Specification on Animal Welfare, Based on the OIE
Standards.
136
See also the acknowledgement of cultural aspects in this context in the Treaty on the Func-
tioning of the EU (TFEU), Article 13 [2012] OJ C326/54.
137
http://www.ssafe-food.org/our-projects/science-based-standards/. Accessed 10 July 2015.
202 D. Ryland
6 The Emerging Public/Private Interface in Animal

Welfare Standards: A Theoretical Understanding
It is the emerging relationship between the public international animal welfare

standards of the OIE and private global animal welfare standard regimes with which
this chapter is concerned.138 GLOBALG.A.P.’s collective standard scheme increas-
ingly occupies a strategic position in the global food chain as the industry norm. It
has, on the one hand, the potential incrementally to undermine the ‘integrity’ of the
OIE139 and, ultimately, through market access denial, the implementation of the
animal welfare standards of the OIE. On the other hand, GLOBALG.A.P. could be
seen to be providing a quality threshold above OIE standards. It may be the case that
‘economic globalisation and market forces do not necessarily result in lowering
standards. Sometimes, it leads to a “race to the top”.’140 Yoshiko Naiki reveals that
‘if a private scheme competes against a government-drive scheme, the competition
may actually encourage the proliferation of the private effort’.141 This would mean
that the potential would exist for any higher animal welfare standards of
GLOBALG.A.P. to prosper for the benefit of the consumer in developed economies
and for animal welfare. Market demand would potentially be facilitative also of
those exporting from developing countries to achieve a price that would enable
higher animal welfare to be practised, inclusive of the baseline standards of
the OIE.
Yoshiko Naiki explains that ‘the development of governmental and private
schemes may be mutually reinforcing’.142 He associates with the agri-food sector
the suggestion that ‘in an area where regulatory protection is frequently demand
driven the relationship between the regulator and the private sector may be less than
antagonistic’.143 Adopting these lines of reasoning, there would appear to be the
scope for the public animal welfare standards of the OIE with their scientific basis
to be sustained alongside the private, purportedly higher, animal welfare assurance
stipulations of the global collective scheme.
‘[T]he cooexistence of governmental and private schemes may generate com-
plementary effects’,144 according to Yoshiko Naiki. It may prove to be credible for
GLOBALG.A.P. to reinforce the scientific basis for its animal welfare standards
that have as a base the species-specific OIE animal welfare standards in respect of
which a chapter has been adopted in the OIE TAHC. In this way, the international
138
The trade impact of GLOBALG.A.P. has been the subject of academic discourse. See Naiki
(2014), p. 139, citing Wouter and Geraets (2012), pp. 488 et seqq. See also, Daugbjerg (2012),
pp. 55–66; Botterill and Daugbjerg (2011), p. 488.
139
140
Naiki (2014), p. 143, citing Vogel (1995).
141
Naiki (2014), p. 146.
142
Ibid.
143
Scott (2007), p. 310.
144
Naiki (2014), p. 146.
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standing of the OIE as the animal welfare reference standard would be bolstered,
and the private collective system’s future would depend upon the market demand
for higher animal welfare standards. This could constitute ‘one type of “institutional
complementarity approach”, where the existence of a related public scheme pro-
vides a foundation for “private regulation to operate effectively and credibly”’.145
A memorandum of understanding/cooperation agreement between the OIE and
GLOBALG.A.P., regarding standards of animal welfare in agri-produce feeding
into the global food chain, would serve to reinforce the existence of this hybridity.
Using law and economic theory to identify the strengths of private standard
schemes and their vulnerabilities and to understand the relationship between public
and private regulation, Elena Fagotto draws, first of all, upon the public interest
interpretation of regulation. In accordance with the public interest theory ‘regula-
tion is supplied in response to the demand of the public for the correction of
inefficient or inequitable market practices’.146 This is in contrast to ‘the capture
theory of regulation’, which ‘abandons any benevolent view of regulation to focus
rather on the interests that shape it’.147 Accordingly, ‘regulators are captured by the
very industries they should oversee, resulting in regulations that advance the
interest of certain segments of industry at the detriment of society’.148 Such
theorising could apply to the motives of the OIE and to those of the private sector
in the global food chain, acting under the guise of animal welfare standard setting.
Arguably, any trade interests of the OIE would be served should the conflict
between its science-based standards and market-based private standards be ame-
liorated. At the same time, the private standards should be ‘free’ to aim higher.
There would be no need to push up the public floor but to leave it to the market to
decide to choose to buy the higher animal welfare standard agri-produce, albeit this
market ‘freedom’ would not be absolute but would be underpinned by public tools
of governance, standardisation and oversight.
Carsten Daugbjerg and Linda Botterill suggest that ‘competing values can
co-exist in parallel institutions and in a commensalistic relationship which protects
the values base of each institution’.149 They rely on the concept of ‘the firewall
strategy’,150 which ‘is more of an avoidance strategy than a balancing act. Under
this model, policy makers quarantine incompatible or conflicting values by
addressing them separately, often in different institutions’.151 It can be said that
145
Ibid., quoting from Cafaggi (2011), p. 48.
146
Citing Posner (1974), pp. 335 et seqq.
147
Fagotto (2014), p. 94 (emphasis added).
148
Ibid.
149
‘while giving expression to both materialistic and postmaterialistic understandings of the nature
of food’, Daugbjerg and Botterill (2012), p. 307 (emphasis added).
150
Citing Thacher and Rein (2004), pp. 457 et seqq.
151
‘Firewalling can help us understand the existence of parallel institutions founded upon
conflicting values within a policy field, how they can be sustained over time and how they avoid
being entangled in institutional battles.’ Daugbjerg and Botterill (2012), pp. 314–315.
204 D. Ryland
the key to such circumvention through the segregating of values and their respective
upholders152 would lie in the practice of liaison and continued dialogue between
public and private standard bodies, i.e. between the OIE, ISO and GLOBALG.A.P.
in the specific field of animal welfare standards.
In application to GLOBALG.A.P. on the one hand and on the other hand to the
OIE supported by the potential ISO technical specification, there would exist ‘an
element of competition but also of mutual benefit from the coexistence of the
respective institutions’.153 It would be necessary in this instance for there to be
the flexibility for the private animal welfare assurance schemes to be able to
continue to set higher animal welfare standards than the baseline norm, so long as
they do not conflict with, i.e. meet at least, the science-based standards of the OIE.
The lowest common denominator standards of the OIE provide a floor below
which global standards of animal welfare are not acceptable. Where there are no
current OIE animal welfare standards, there is no apparent conflict, and the incen-
tive exists for private animal welfare standards to move in.154 Conversely, such a
situation would work to propel negotiations within the OIE in order to reach
consensus on standards of animal welfare where currently none exist, the welfare
of pig production systems for example, providing the scientific basis upon which
private standards would depend. The Member Countries of the OIE would be
carrying out their public role in an evolving situation where consumer credence
for higher animal welfare standards increasingly moves beyond a dependency on
science-based standards. In this way, at the same time, private animal welfare
standard bodies would be encouraged to ensure that their standards take as a basis
the official science-based animal welfare standards, and the information would
exist on which to undertake a conformity assessment and for consumers to be
more accurately informed. A memorandum of understanding/cooperation agree-
ment between GLOBALG.A.P. and the OIE in this regard would go some way
towards assuaging the need for tighter legal controls. The outcome can be foreseen,
thus, that the private schemes could serve to reinforce the implementation of
minimum public animal welfare standards on the part of developing country
farmers/exporters, the public standards positively underpinning the animal welfare
standards of the private schemes with a science-based approach, i.e. a ‘floor’, and
being seen to do so.155
152
‘As Thacher and Rein point out: “By focusing attention of each institution on a subset of the
values that ultimately matter to public policy, it is possible to simplify the task of practice and keep
the pathologies of value conflict at bay. That arrangement helps to ensure that each value has a
committed defender.”’ Daugbjerg and Botterill (2012), pp. 314–315.
153
154
Scannell (2008), at section 5; Robach (2010), at section 4.
155
The World Assembly of Delegates of the OIE, meeting on 27 May 2015, adopted a Resolution,
which recommends that the Director General continue dialogue with the GFSI, GLOBALG.A.P.
and the ISO to ensure awareness of OIE science-based animal welfare standards. Notable, also, is
the consideration of the cultural and trade policy dimensions of animal welfare. World Organisa-
tion for Animal Health (OIE) (2015a) Resolution No. 28, Animal Welfare, 83 GS/FR-Paris,
May 2015.
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Will the prospective ISO technical specification act to undercut and take the
place of a collective industry standard that has the potential to become in reality a
private industry norm? It, too, will be a voluntary consensus standard156 and for the
market to determine how it is used. It may result in the reining in of some of the
potential excesses on the part of the retail private animal welfare standard and
certification schemes. As a ‘widely accepted international standard’, potentially the
ISO technical specification would ‘lower transaction costs in the value chain
because compliance with a single standard is enough for market access’.157
Much remains to be seen as to how the potential ISO technical specification will
be used and as to how it will relate to the private collective standard scheme of
GLOBALG.A.P., for example, or any other large individual retailer private animal
welfare assurance scheme and as to the extent to which the potential for conflict
with the public standards of the OIE will be contained.
This chapter has sought to examine the ongoing steps to ameliorate the potential for
conflict between public and private standards of animal welfare in agriculture and
the standards’ respective owners. The potential for uncoordinated and unregulated
private standard schemes to undermine OIE animal welfare standards as the
international reference standard based on scientific criteria, in respect of which,
as a general rule, consensus has been achieved, has led to a momentum towards
change, towards the apparent drive, on the part of the intergovernmental public
standard body, to open up and to pursue lines of communication and dialogue with
private global standard-setting and certification schemes. This is so as to reinforce
the international common basis reference point of the public science-based stan-
dards and also to encourage Member Countries to implement the OIE animal
welfare standards.158
A lacuna in dialogue is evident in the absence of a cooperation agreement
between the OIE and the global collective private standards and certification
scheme of GLOBALG.A.P., its animal welfare standards potentially becoming
the industry norm for access to the global agri-food chain. The memorandum of
156
‘Voluntary consensus standards arise from a formal coordinated process involving participants
in a market with or without the participation of government. A variety of private entities may be
involved in the establishment of voluntary consensus standards including industry and trade
organisations, professional societies, standards-setting membership organisations and industry
consortia, which in some cases are coordinated by a public entity. Broadly, the international
standards developed by the International Organization for Standardization (ISO) and national
and/or regional standards bodies take the form of voluntary consensus standards.’ Henson
(2008), p. 63.
157
Borrowed out of context from Fagotto (2014), p. 88.
158
See World Organisation for Animal Health (OIE) Resolution No. 26 (2010d).
206 D. Ryland
understanding/cooperation agreement additionally proposed in this chapter

between the OIE and GLOBALG.A.P., by opening up a mutually reinforcing
two-way channel of dialogue and entrenching an agreed science base where public
standards of animal welfare exist, would serve to rein in any private potential for
excess detrimental to the international standing of the OIE and market access
globally for producers of agricultural produce meeting OIE animal welfare
standards.
The initiative of the new work item of the ISO Food Products Technical
Committee towards a technical specification on animal welfare has been scarcely
documented, in respect of which negotiations the OIE has observer status, albeit a
direction foreseen in the OIE/ISO cooperation agreement. The technical specifica-
tion, a communicative tool, would reinforce the interface between the public
science-based standards of the OIE and those of private animal welfare standard
schemes. The latter would be seen to be based on the former via a marketable
process of benchmarking voluntarily to the ISO specifications, the ISO in institu-
tional terms devoid of any trade/market-related interests in animal welfare, the
technical specification bridging the public/private divide.
The prospective ISO technical specification may serve as a catalyst for a future
OIE/GLOBALG.A.P. memorandum of understanding/cooperation agreement, in
which interrelations are confirmed and, in particular, that GLOBALG.A.P.’s animal
welfare standards meet at least the standards of the OIE TAHC for food-producing
animals. The potential would exist for private animal welfare standards voluntarily
to market raised standards of animal welfare beyond, and in place of, the under-
pinning science base—private standard schemes having a reinforced mandate
where dialogue and communicative soft law tools characterise this public/private
interface.
The question has been asked as to what motivates this ongoing movement, i.e. in
whose interests is it pursued? It is important to weigh up all the potential interests
involved, namely the international trade objectives of the OIE; its public role of
guarding the interests of developed and developing countries—in the face of
uncoordinated private standards, which potentially may be market driven; and the
assurance of animal welfare in food-producing animals. It may not in the end
amount to a balancing exercise, but one of avoidance of conflict, by ‘deflecting’
issues of concern and ‘protecting’ the ‘values’ of each respective body.159 In
application, by locating a solution in enhanced dialogue and communication
between both public and private animal welfare standard schemes reining in the
potentially detrimental implications for stakeholders in the global agri-food chain,
it is submitted that each institution can continue to operate within its own sphere
and interests. The integrity of the OIE is upheld as the international reference
standard based on scientific criteria for terrestrial animals reared for food. By
both adhering to, and promoting, this basic premise through governance tools of
dialogue and communication, the scope is thereby reinforced for private animal
159
Daugbjerg and Botterill (2012), pp. 314–315.
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welfare assurance schemes to market voluntarily higher standards of animal welfare

in the global agri-food chain.
Acknowledgements Thanks go to Professor Michael Cardwell, Professor of Agricultural Law,

Law School, University of Leeds, United Kingdom, for his helpful comments, direction and
guidance, which have further developed my thinking in reshaping the content of this chapter.
All errors are my own.
References
Botterill LC, Daugbjerg C (2011) Engaging with private sector standards: a case study of
GLOBALG.A.P. Aust J Int Aff 65(4):488–504
Burrell A (2011) “Good agricultural practices” in the agri-food supply chain. Environ Law Rev 13
(4):251–270
Cafaggi F (2011) New foundations of transnational private regulation. In: Scott C, Cafaggi F,
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debates. Wiley-Blackwell, Malden, pp 48 et seqq
Cafaggi F, Renda A (2012) Public and private regulation. Mapping the labyrinth. CEPS working
document number 370. http://www.ceps.eu/publications/public-and-private-regulation-map
ping-labyrinth. Accessed 29 Mar 2015
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GLOBALG.A.P. (2016b) General regulations: GR V5.0_2 July 16, Part I – General requirements,
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Policy 30:354–369
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food system. Food Policy 30:241–253
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animal agriculture. CRC Press and Taylor & Francis Group, Boca Raton, London, and
New York, p ix
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a/policies-and-consultations/policies/food. Accessed 23 Feb 2015
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law and policy. Routledge, Abingdon
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diffusion of GLOBALG.A.P. Int Comp Law Q 63(1):137–166
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APM(2006)9/FINAL
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78th General Session World Assembly, World Organisation for Animal Health (OIE), Paris,
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Demokratyczne, Prawne I Socjalne. Andrzej Frycz Modrzewski Kraków University/
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FR-Paris, May 2004. http://www.oie.int/fileadmin/Home/eng/Animal_Health_in_the_World/
docs/pdf/A_RESO_2004_WP.pdf. Accessed 30 Sept 2016
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for Animal Health (OIE) and the Center for Animal Health and Food Safety for the Safe Supply
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tion-agreements/agreement¼with-the-safe-supply-of-affordable-food-everywhere-initiative-
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2010. http://www.oie.int/doc/ged/D9690.PDF. Accessed 2 Jul 2015
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of public and private standards in animal health and animal welfare. http://rpawe.oie.int/
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eng/Animal_Welfare/docs/pdf/AWWG_Reports/ANG_AWWG_June_2010.pdf. Accessed
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international trade, Montevideo, Uruguay, 17–18 October 2013, objectives. http://www.oie.int/
eng/A_MONTE/objectifs.htm. Accessed 12 Jul 2015
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Legal Pluralism and the Regulation of Raw
Milk Sales in Canada: Creating Space
for Multiple Normative Orders at the Food
Policy Table
Sarah Berger Richardson
1 Introduction
In Canada, opinions about raw milk are highly polarized. Public health officials
warn that unpasteurized milk can contain harmful pathogens that expose consumers
to unacceptable risks of food-borne illness. Raw milk advocates counter that
pasteurization reduces milk’s nutritional properties and that individuals should
have the right to consume the foods of their choice. From a legal perspective, the
status of raw milk in Canada is clear: without exception, its sale and distribution are
prohibited across the country. Moreover, despite growing consumer demand,
authorities show no signs of easing restrictions on raw milk in the near future.
To date, legal scholarship has focused on two main arguments underlying the
raw milk debate. The first is a rights argument based on personal autonomy, which
suggests that individuals have (or should have) a right to food choice.1 The second
is based on divisions of power in an era of multilevel governance and considers the
rights of regional authorities to regulate local food systems, free from federal or
state (or provincial, in the Canadian context) interference.2 While both raise novel
arguments about the legal status of raw milk, they nevertheless work within existing
legal frameworks to identify narrow opportunities to opt out of the status quo rather
than to reform agricultural policy from the ground up. Neither challenges the
normative foundations of Canadian food law and policy, which are based on an
industrial and productivist vision of agriculture.
Missing from legal scholarship is a serious engagement with the more radical
normative claim of the raw milk movement that food law and policy should shift its
1
See, e.g., Almy (2012) and Semands (2014).
2
Anderson (2014), p. 426.
S.B. Richardson (*)

Faculty of Law, McGill University, Montreal, QC, Canada
e-mail: sarah.bergerrichardson@mail.mcgill.ca

212 S.B. Richardson
attention away from productivism towards other policy goals. Although individual
consumers and producers might have different reasons for preferring unpasteurized
milk, many raw milk advocates share deeply held beliefs about the morality,
sustainability, and quality of food systems that contrast sharply with the dominant
model of industrial agriculture. The raw milk movement is seeking more than the
permission of the state to access a particular product; it is challenging a regulatory
system to be more responsive to multiple policy goals, including but not limited to
ensuring environmental stewardship of agricultural land, developing rural econo-
mies, and protecting local food systems.
This paper makes the case for considering the normative claims of the raw milk
movement. Part I introduces the reader to the current debate around raw milk in
Canada and how institutional legal discourse (legislative and judicial) has avoided
taking its supporters’ claims seriously by characterizing them as “subjective
beliefs.” Part II challenges this exclusion and draws on principles of legal pluralism
to illustrate how the raw milk movement can be understood as a normative order
whose adherents are governed by values they believe are equally (if not more)
compelling as those underlying state law. Part III goes further and argues that the
raw milk movement offers a valuable counterstory to the dominant narrative around
food and agriculture in Canada that challenges the social, environmental, and
economic costs of industrial production methods.
The use of legal pluralism in this paper should not be misunderstood as pre-
scribing uncritical acceptance of a plurality of perspectives or suggesting that a
consensus can be reached in this ongoing debate. Even good faith dialogue between
lawmakers and raw milk advocates might end in fundamental disagreement. Nev-
ertheless, it is argued that there is value in engaging in debate instead of margin-
alizing challenging ideas or excluding them from the food policy table ab initio.
Policy makers are failing to take seriously dissenting opinions about raw milk. This
means that critical perspectives on social, ecological, and economic aspects of
agriculture are not being heard.
2 Alternative Food Systems and the Raw Food Movement
2.1 Alternative Food Systems as a Reaction to Industrial

Agriculture
The rise of industrial agriculture during the second half of the twentieth century
heralded a new era of cheap and plentiful food for North American consumers.
However, increased productivity came at a price. Farmed animals are now subject
to widespread exploitation and abuse in confined animal feedlot operations
(CAFO), ecosystems are degraded by intensive land use, farmers face mounting
financial pressures and debt, and agricultural workers are exposed to serious health
hazards due to close and regular contact with manure runoff and pesticides. The
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Legal Pluralism and the Regulation of Raw Milk Sales in Canada: Creating. . . 213
increasing regularity of food scares has also reminded urban consumers, who are
otherwise disconnected from their food sources, that no one is immune to the
impacts of industrial farming.3 Indeed, while today’s industrial food system was
originally designed to improve food security for consumers, over time it has fallen
victim to its own success. As the scale and scope of production increase, contem-
porary supply chains are becoming too complex to regulate. In the absence of a
holistic regulatory approach to food systems that integrates human health, environ-
mental, and social issues, food law and policy is experienced as a disjointed series
of ad hoc reactions to food system failures.4
Concerns about the safety and desirability of pursuing intensive industrial
production of food and agriculture have also pushed groups of farmers, consumers,
animal rights activists, labor organizations and environmentalists to opt out of
conventional food systems and create alternative systems that promote sustainable
agriculture, localized food networks, and personal connections between consumers
and producers. Alternative food systems can be traced back to the counterculture
and back-to-the-land movements of the 1960s. More recently, since the late 1990s,
they have been associated with the local food movement in its various iterations:
Slow Food, farm-to-fork diets, organic labeling, fair trade, urban agriculture, and
food sovereignty. There is no legal or universally accepted definition of what
constitutes local food or what characterizes alternative food systems.5 However,
recurring themes include geographic proximity between producers and consumers,
community control over production, ecological stewardship, and an emphasis on
food quality. These ideas have been made popular with the release of best-selling
books, including Alisa Smith and J.B. MacKinnon’s The 100-Mile Diet: A Year of
Local Eating, Michael Pollan’s The Omnivore’s Dilemma, and Joel Salatin’s Every-
thing I Want to Do Is Illegal: War Stories from the Local Food Front, as well as
documentaries such as Food Inc. and Fast Food Nation.
The raw milk movement is an example of an alternative food system in which
consumers bypass supermarkets and purchase small batches of unpasteurized milk
directly from local producers. Despite warnings from public health officials6 that
raw milk exposes consumers to serious threats of illness, especially among children,
pregnant women, and the elderly, its supporters actively seek it out. They argue that
it is more nutritious than pasteurized milk because pasteurization indiscriminately
kills all bacteria in milk, including enzymes with beneficial health properties.7
Moreover, food scares and lack of trust in the safety of conventional food systems
3
From the BSE epidemic in Great Britain in 1996, to the North American outbreak of E. Coli
contaminated spinach in 2006, to the listeriosis tainted meat products in Canada in 2008, to the
recall of half a billion eggs testing positive for salmonella in the United States in 2010, it has
become increasingly clear that food-borne illnesses know no borders. See Blay-Palmer (2008).
4
Blay-Palmer (2008), p. 13.
5
Martinez et al. (2010), p. 3.
6
Health Canada and the Public Health Agency of Canada (2011).
7
Rencher (2012), p. 421; Anderson (2014), p. 407.
214 S.B. Richardson
lead some to believe that it is safer than store-bought milk. It is one of the ironies of
the raw milk debate that both its supporters and opponents cite food safety to justify
their position. Finally, the moral philosophy underlying raw milk extends beyond
health claims and is premised on the broader normative imperative of localizing
food systems, shortening supply chains between producers and consumers, and
encouraging traditional agricultural practices in rural communities.8
2.2 R v Schmidt and the Prohibition of Raw Milk Sales

in Canada
Despite a growing demand for raw milk, its sale and distribution are illegal in
Canada. Laws requiring pasteurization can be traced back to a 1927 typhoid
epidemic in Montreal caused by contaminated milk.9 In 1938, Ontario became
the first Canadian province to ban all sales of raw milk.10 However, it was not until
1991 that the federal government introduced a nationwide prohibition on its sale.
The authority to regulate milk in Canada is divided between the federal and
provincial governments. The provinces have jurisdiction over fluid (drinking) milk,
including interprovincial trade, and the federal government has jurisdiction over
industrial milk (milk used in the production of cheese, butter, yoghurt, and other
products).11 The federal government bans all sales of raw milk under Health
Canada’s Food and Drug Act Regulations.12 At the provincial level, the dairy
industry is regulated through a national supply management system, with provincial
boards setting prices, production quotas, and other regulations.13 In all ten prov-
inces, provincial laws prohibit the sale and distribution of raw milk. Raw milk sales
are also illegal in the territories.
The validity of provincial laws prohibiting raw milk sales was recently chal-
lenged in Ontario.14 A raw milk dairy farmer, Michael Schmidt, was charged with
selling and distributing unpasteurized milk and milk products, which is prohibited
by the provincial Health Protection and Promotion Act (HPPA).15 He was also
8
Anderson (2014), Almy (2012) and Semands (2014).
9
Canadian Public Health Association.
10
Jenkins (2008), para 24.
11
Buckingham (2014).
12
Food and Drug Act Regulations, C.R.C. c. 870, s B.08.002.2.
13
Buckingham (2014).
14
Schmidt is a recurring character in legal battles around the sale of raw milk. Earlier this year, he
lost an appeal to the British Columbia Court of Appeal from an order finding him in contempt of
court for packaging and distributing raw milk for human consumption contrary to a permanent
injunction dating back to 2010 (Schmidt v Fraser Health Authority, 2015 BCCA 72). His argument
that the raw milk was being packaged and distributed for cosmetic purposes only was found to be a
ruse, similar to the OCJ’s finding that his cow share program was an attempt to circumvent the law.
15
Health Protection and Promotion Act, R.S.O. 1990, c. H.7.
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charged with operating an unlicensed milk plant contrary to Ontario’s Milk Act16
and failing to obey an order of the Public Health Inspector.17
Schmidt, an outspoken advocate for the removal of structural barriers to
unpasteurized milk, had been attempting to take advantage of what is known as
the “farm family exception”18 to allow his customers to purchase raw milk. In
Ontario, it is legal to consume raw milk but illegal to sell or distribute it. For
practical purposes, this means that only dairy farmers and their immediate family
can consume raw milk. To extend the farm family exception to his customers,
Schmidt ran a “cow-share program” in which individuals purchased leasehold
interests in his cows in exchange for raw milk and milk products. Members in the
program also paid a certain amount per liter to cover maintenance and milking costs
of the cows. The idea was that members were not in fact customers purchasing milk
from Schmidt, but rather they were farmers consuming milk from their fractional
interest in a cow.
The legality of Schmidt’s cow-share program was rejected by the Ontario Court
of Justice in 2011, and Schmidt was convicted of selling and distributing raw
unpasteurized milk and milk products.19 He unsuccessfully challenged his convic-
tion to the Ontario Court of Appeal in February 2014.20 Leave to appeal to the
Supreme Court of Canada was subsequently denied without reasons in August
2014.21 Writing for the majority of the Ontario Court of Appeal, Sharpe
J.A. recognized Schmidt’s deeply committed belief in the benefits of raw milk
and that his cow-share program attempted to comply with provincial legislation.22
Nevertheless, Sharpe J.A. held that, in effect, Schmidt was engaged in the sale,
delivery, and distribution of raw milk and had therefore violated both the HPPA and
the Milk Act.
Sharpe J.A. gave deference to the power of the province to enact laws that ensure
public health and safety, writing that as long as the legislature acts within consti-
tutional limits, the court must respect its policy decision to restrict raw milk sales.
Schmidt argued that the HPPA and Milk Act were unconstitutional because regu-
latory restrictions on an individual’s food choice impinge on personal autonomy
and violate the right to life, liberty, and security of the person under section 7 of the
Charter of Rights and Freedoms.23 The court rejected this argument, holding that
16
Milk Act, R.S.O. 1990, c. M.12.
17
R v Schmidt, 2011 ONCJ 482.
18
R v Schmidt, 2011 ONCJ 482, para 2.
19
R v Schmidt, 2011 ONCJ 482.
20
R v Schmidt, 2014 ONCA 188.
21
R v Schmidt, 2014 SCCA No 208.
22
R v Schmidt, 2014 ONCA 188, para 6.
23
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule
B to the Canada Act 1982 (UK), 1982, c 11.
216 S.B. Richardson
there is no scientific evidence to support the proposition that raw milk has beneficial
health properties. A security of the person argument could not be made, Sharpe
J.A. wrote, “[. . .] on the basis of an individual’s subjective belief that a banned
substance would benefit his or her health.”24 Moreover, lifestyle choices, such as
food preferences, are not covered by the liberty interest.
Despite losing his appeal, Schmidt remains committed to producing and selling
raw milk.25 He insists that raw milk is healthier than pasteurized milk and has since
changed the structure of his business in an effort to comply with provincial
regulations. Individuals must now buy a part interest in his farm, as well as his
cows, so that they become members in a farming collective rather than customers.
This new system is unlikely to withstand scrutiny if Schmidt is prosecuted again,
but this has not deterred him or his supporters. This was made clear in October
2015, when a standoff between provincial officials and Schmidt’s collective took
place on his farm in Durham, Ontario. On October 2, 2015, Schmidt’s farm was
raided by provincial officials, including the Ministry of Natural Resources, the
Ministry of Agriculture and Food, the Ministry of Finance, and the local police.26
While officials seized farm equipment and computers, Schmidt alerted the members
of his collective and other supporters on social media of the situation. Within an
hour, a reported 50 people gathered on the farm, armed with cameras to document
what was happening, and physically blocked officials from leaving the premises
with the seized equipment. Even when threatened with arrest, they maintained their
blockade. After a few hours, officials unloaded the equipment from their vehicles
and left without laying any charges. The standoff received national media coverage
and captured the commitment of this community to Schmidt and his operation, as
well as their rejection of the authority of the state to prevent them from consuming
foods of their choice.
3 Raw Milk as a Normative Order Engaged in Dialogue

with State
3.1 The Absence of a Single Truth and the Multiplicity

of Legal Orders
A common introductory reading for American undergraduate anthropology stu-

dents is Horace Miner’s ethnography of body rituals among the Nacirema tribe.27
Miner describes strange and exotic customs that he witnessed during his fieldwork,
24
R v Schmidt, 2014 ONCA 188, para 35.
25
The Canadian Press (2014).
26
Global News (2015).
27
Miner (1956).
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including masochistic tendencies, medicine men with curative potions, self-

mutilation, and routine cleansing practices in private shrines. Seen through Miner’s
eyes, the Nacirema appear to be magic-ridden people whose belief system about the
ugliness of the human body translates into incredibly burdensome body rituals. A
careful reader might pick up on clues throughout Miner’s ethnography that reveal
the story’s hidden twist, but many students are too distracted by the foreignness of
the tribe’s customs to notice them. In class, they will later be shocked to discover
that “Nacirema” is “American” spelled backwards, and the body rituals that had
repelled them were really descriptions of such familiar concepts as brushing one’s
teeth, a medicine cabinet in the bathroom, cosmetic surgery, and hospitals. To see
the world through the eyes of an outsider can be a revelatory experience.
Introductory anthropology courses train anthropologists to situate themselves in
their work and to recognize the ways in which their worldview shapes their
understanding of others. What about jurists? When law students begin their studies,
they are taught to respond to questions with reference to reason instead of personal
opinions or experiences.28 Over time, they learn to remove themselves from the
problem and to stake positions on what is right and wrong within the confines of
formal institutions of law based on rules and principles of justice.29 As jurists, we
idealize concepts of reason, rules, and justice, which are foundational to our legal
system. However, we also recognize that adherence to a system of perfectly
articulated universal rules is unattainable.30 Lawmaking is not about legislating
universal rules. Rules, despite their promise of simplicity and objectivity, are
difficult to apply through reasoned deliberation alone. Rather, lawmaking is about
the application of good judgment to a particular situation. It is neither timeless nor
free from emotion.31 It is contextual, contingent, and experienced according to
preexisting relationships, mutual understanding, and connection.32
To say that law is contextual is to recognize that law is lived through custom and
practice. It cannot be reduced to the application of a formula. Nor can an individ-
ual’s interaction with law be reduced to a single relationship. We are governed by
multiple legal and normative orders simultaneously, and as living subjects we
engage with each of these orders as “normative agents,” constituting our social
and legal realities in the process.33 By attributing varying degrees of importance to
the rules to which we are subject, individuals and communities operate as legal
actors. By constructing relationships with different, and potentially incompatible,
normative orders, we experience law as lived.34
28
Meyer (2010), p. 10.
29
Cover (1983), p. 4.
30
Meyer (2010), p. 3.
31
Meyer (2010), p. 20.
32
Meyer (2010), p. 35.
33
Macdonald and Sandomierski (2006), p. 623.
34
Macdonald and McMorrow (2007).
218 S.B. Richardson
A legal pluralist perspective highlights the multiplicity of ways that law affects
social life, both inside and outside formal legal institutions. People belong to
multiple groups and are accountable to different normative orders. With the rise
of globalization, we recognize the existence of, and need for, multiple levels of
regulatory authority. Contemporary problems require decision making and imple-
mentation across territorial lines and at different levels of government. It has
become impossible to think about designing policies exclusively at the federal or
state or local level and necessary to work across multiple levels of government
simultaneously.35 Moreover, the idea of law as lived invites us to consider how
non-state normative orders also shape our behavior.
Legal pluralism helps cultivate awareness that these varying instantiations of
law can be fragmented, inconsistent, and contradictory.36 At the state level, con-
flicts are manifest between local, national, international, and transnational orders.
At the individual level, conflicts can arise between legal and other normative
orders. In some instances, the individual might have the agency to choose among
a wide range of options. In other instances, choice might be limited due to the
coercive power of a particular order to which the actor is subject. The significance
of a normative act can therefore only be understood with reference to the particular
norm upon which it is based.37 When the Ontario dairy farmer, Schmidt,
circumvented the regulatory authority of the province’s HPPA and Milk Act with
a creative cow-share program, he was negotiating an interaction with multiple
normative orders. Schmidt’s decision to create a new farm ownership scheme
after losing his appeal is a forceful communication of the values to which he
feels bound and those he rejects.
Schmidt’s continued defiance in the face of repeated prosecutions and the civil
disobedience of his farm collective during the October 2015 raid are not examples
of lawless behavior. For a start, Schmidt insists that his farm ownership scheme is
an attempt to comply with provincial laws, not break them.38 The standoff on the
farm involved a dispute between officials and members of the collective over the
seizure of farm and computer equipment. At the same time, it also ran much deeper.
While Schmidt and his supporters may recognize and even welcome the authority
of the state to create and enforce a wide variety of rules that shape their daily lives,
they see a conflict with this authority and the normative framework they have
chosen to govern their relationship with food. As such, it is likely that the same
members of Schmidt’s collective who confronted local police on Schmidt’s farm on
October 2, 2015, would have followed state-enforced traffic laws on their way to the
standoff and would not have experienced any contradiction or moral conflict as a
result. Without rejecting the authority of the state entirely, the raw milk collective
35
Blank (2010), p. 510.
36
Merry (2013), pp. 2–3.
37
See Cover (1983), p. 8. The same act in two different scenarios signifies something new and
powerful when it is understood in reference to a norm.
38
The Canadian Press (2015); See, e.g., Postmedia Network (2015).
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illustrates how we negotiate our relationship with multiple truths and overlapping
normativities.
3.2 The Raw Milk Movement as an Example of Nonstate

Legal Ordering
Many alternative food systems, including the raw milk movement, are informed by
an underlying commitment to food sovereignty and principles of self-determination
over food. The expression “food sovereignty” was first coined by La Via
Campesina, a global collective bringing together organizations of peasants, small
and medium-scale farmers, rural women, farm workers and indigenous agrarian
communities from all regions of the world. In 1996, La Via Campesina launched a
global campaign calling for the international recognition of food sovereignty,
which it defined as the right of local peoples to control their own food systems,
including markets, ecological resources, food cultures, and modes of production, as
well as the explicit rejection of neoliberal agricultural policies.39
Food sovereignty asks generally whose interests should be served by food and
agricultural production and calls into question the political and jurisdictional scales
at which food law and policy can be achieved. 40 It offers an analytical framework
to rescale both the production and regulation of agriculture according to more
regional geographic spaces.41 Food sovereignty challenges peoples, regions, and
states to craft their own food policies and to demand specific arrangements to
govern territory and space. One of the radical features of food sovereignty is the
way it pluralizes authority for the regulation of food and promotes the articulation
of food rights in multiple jurisdictions simultaneously.42
The idea of layering jurisdictions resonates with theories of legal pluralism and
is also foundational to the local food movement, a close relative to food sover-
eignty. A number of regional initiatives supporting localized food systems were
documented by the Special Rapporteur on the right to food during his 2012 mission
to Canada, including Ontario’s Local Food Act (Bill 36),43 which aims to increase
awareness of, access to, and demand for local food in the province.44 Meanwhile, in
the United States, municipalities in Maine, Vermont, Massachusetts, and California
have passed “local food ordinances” (also known as food sovereignty ordinances)
in support of regional agricultural self-governance and to assert the right of
communities to produce, process, sell, purchase, and consume local foods.45 They
39
La Via Campesina (1996) and Wittman (2011).
40
Kurtz et al. (2013), p. 7.
41
Ibid.
42
Patel (2010), p. 191.
43
Local Food Act, 2013, S.O. 2013, c. 7.
44
Olivier De Schutter, A/HRC/22/50Add.1, paras 17, 26–32.
45
See, e.g., Almy (2012).
220 S.B. Richardson
also complicate the traditional two-tiered federalist divisions of power by adding a

third jurisdictional layer of governance to the mix. By privileging local legal orders,
local food ordinances establish competing sites of authority with federal and state
food safety regulations. An example of the tension created by such regulatory
pluralism can be seen in the 2014 case State v Brown, in Maine. 46 Brown, a farmer,
was charged with unlicensed distribution and sale of raw milk and food products
contrary to Maine’s state regulations that require raw milk to be licensed for public
safety reasons. Brown argued that Maine’s regulations did not apply to him because
his community’s local food ordinance exempted farmers from food safety rules if
they were selling directly to consumers. The court disagreed and held that the
ordinance lacked the authority to exempt individuals from state licensing require-
ments (the validity of the ordinance as a whole, however, was upheld).
While local food legislation and ordinances highlight the layering of multiple
formal legal orders in food law and policy, raw milk sales in Canada take the legal
pluralism project even further by illustrating the normative force of non-state order-
ing. Members of Schmidt’s cow-share program knowingly signed up to an illicit
scheme because of a shared commitment to the morality, sustainability, and quality
of local food systems. Within this raw milk community, food safety standards were
regulated not by formal legal institutions but according to relationships of trust
between Schmidt and his customers. Examples of raw milk sales in the United
States highlight similar partnerships where relational proximity between dairy
farmers and consumers determine the development and maintenance of market
norms.47 While illegal, they are not lawless. Rather, they are examples of
non-state normative orders that are consciously chosen by normative agents as
compelling alternatives to formal state law.
So far, no evaluation has been made here about whether a particular food
system’s normative order is preferable to another. Rather, the focus has been on
using principles of legal pluralism to challenge the clear lines drawn by the Ontario
Court of Appeal in the Schmidt case between objective (i.e., legitimate) state law on
the one hand and subjective (i.e., illegitimate) personal beliefs on the other hand.
Studying this case through the lens of legal pluralism invites a more nuanced
understanding of the conflict because Schmidt and his supporters are operating
within a normative order that they believe to be more authoritative than the state.
Adopting a legal pluralist approach means recognizing diversity and refraining
from privileging a particular order. This should not be confused with normative
relativism, critical reflection is always important.48 It does, however, challenge the
presumption that state law is deserving of a special status due to its pedigree alone.
To the extent that we are governed by multiple normative orders, disjunctions
between the rules to which we are subject are inevitable. Legal pluralism teaches
46
State v Brown, 2014 ME 79.
47
Gumpert (2013), pp. 11–21, 37–58.
48
Campbell (2008), p. 130.
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us to be attentive to these spaces of conflict rather than attempt to erase them. While
different orders may not reach agreement on norms, the solution is not to margin-
alize dissenting voices through universalist imperatives. There is value in creating
spaces where hybridity can be taken seriously.49
Trivializing the beliefs of raw milk advocates as subjective, and therefore
illegitimate, is inconsistent with the principles of legal pluralism. It is also incon-
sistent with Canada’s tolerance of religious-based food laws, such as kosher and
halal certification, which are not based on science and yet accepted and regulated in
the mainstream. Canada has a history of recognizing the existence of multiple
normative orders and encouraging interaction between them. Despite divergent
worldviews, dialogue between lawmakers and raw milk supporters is not impossi-
ble. However, in order for it to be constructive, there must be acknowledgment of
the normative foundations of each side’s perspective.
4 Raw Milk’s Challenge to the Dominant Food Safety

Policy Narrative
4.1 Thinking with an Enlarged Mentality: Understanding

the Origins of Food Safety Regulations
The Nacirema ethnography teaches anthropology students that seeing the world
through the eyes of an outsider can be a revelatory experience. Similarly, Hannah
Arendt’s concept of thinking with an enlarged mentality similarly invites us to see
things from another person’s standpoint, even if it differs radically from our own.
“Critical thinking,” she explains, “is possible only where the standpoints of all
others are open to inspection.”50 Arendt invites a kind of thinking that trains the
imagination “to go visiting.”51 This both acknowledges the existence of other
perspectives and makes possible the act of turning our gaze inwards to see our
self in a new light.52 Engaging seriously with legal pluralism requires developing
the capacity to be as aware of the underlying assumptions of our own system as we
are of others. The critical study of an external normative order should amount to
more than simple voyeurism; it requires a commitment to reflecting on the way our
own culture shapes our approaches and conclusions. By cultivating openness to
alternative modes of organization, legal pluralism challenges the presumed superi-
ority of any particular order.53
49
Berman (2006), p. 1164.
50
Arendt (1992), p. 43.
51
Ibid.
52
Cossman (1997), pp. 537 et seqq.
53
Campbell (2008), pp. 135–137.
222 S.B. Richardson
This final section explores how enlarging the mind to see food law and policy
through the lens of raw milk advocates challenges the supposed objectivity and
neutrality of Canada’s raw milk prohibition. Just as the raw milk movement is based
on a particular narrative about food systems, state-regulated agriculture can also be
situated within a story about the food we eat.
In North America, the drafting of the first food laws coincided with the rise of
urbanization and industrialization of methods of agricultural production at the turn
of the twentieth century.54 Urbanization separated city dwellers from their food
sources and increased the distance that food had to travel to reach markets, in terms
of both geographic distance and the number of intermediaries between producers
and consumers. Meanwhile, industrialization introduced new chemical fertilizers,
insecticide, and herbicide to the food chain, as well as processed food for mass
consumption in the market economy. As a result of these developments, food went
from an intimate good based on personal relationships to an industrial commodity
negotiated through market transactions.55
Alongside urbanization and industrialization, the spread of outbreaks of food-
borne illnesses was also changing food systems. As food-borne illnesses became a
leading cause of death in the United States, the need for regulatory oversight was
undeniable.56 In 1906, Upton Sinclair published The Jungle, a novel about the
immigrant experience and dangerous working conditions in Chicago’s notorious
meat packing industry. The novel vividly captured the prevailing unsanitary prac-
tices in food-processing facilities at the time and sparked widespread public interest
in the health threats posed by the industrial food system. Within a year of its
publication, President Roosevelt enacted both the Pure Food and Drug Act57 and
the Federal Meat Inspection Act.58 Canada adopted the Meat and Canned Food Act
one year later.59
While Sinclair chose Chicago’s stockyards as the backdrop for The Jungle, he
could just have easily have chosen the dairy industry and the widespread practice of
selling swill milk. Swill milk is raw milk produced by cows fed on waste left over
from the beer-brewing process. During the early 1900s, swill milk was a common
cost-cutting practice in urban dairies and was being sold to unsuspecting consumers
in large American cities. This contributed to the spread of multiple diseases,
including tuberculosis, diphtheria, and typhoid fever. According to the Centers
for Disease Control and Prevention, approximately 25% of food-borne illness at
that time could be attributed to swill milk.60 To ensure the quality and safety of the
54
Blay-Palmer (2008), pp. 9–11.
55
56
57
Pub. L. No. 59-384, 34 Stat. 768 (1906).
58
Pub. L. No. 59-242, 34 Stat. 1260 (1906).
59
RSC 1907, c 77.
60
Anderson (2014), p. 405.
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urban milk supply, governments began to step into this previously unregulated
sector. Large cities such as Chicago, Boston, New York, and Philadelphia began
requiring the pasteurization of all milk, and by the 1920s, pasteurization had
become common practice across the United States.61 Similar laws were developed
in Canada around this time. As mentioned earlier, a typhoid outbreak in Montreal
triggered the first pasteurization laws in the country in 1927. This was followed by a
series of provincial laws and then a federal ban in 1991.
Despite these interventions, unsanitary practices in the food industry are not a
relic of the past. Throughout the twenty-first century, regular occurrences of food
scares have heightened concern about the safety of our food supply. From outbreaks
of salmonella in eggs, E. coli in spinach, mad cow disease (BSE), avian flu, and
listeriosis, we are constantly confronted with risks associated with eating contam-
inated food, from illness to disease and even death.62 Highly publicized crises have
contributed to distrust in the safety of the food that we eat and consumer demand for
stricter government oversight of food production systems. For example, after the
BSE crisis during the 1980s and 1990s, food safety authorities were created in the
United Kingdom to restore consumer confidence and ensure food safety from farm
to fork.63 In Canada, the Canadian Food Inspection Agency (CFIA) was revamped
in 2007 to focus on food safety and preventable health risks.64 More recently, in
2012, the Canadian government introduced the Safe Food for Canadians Act,65
promising that it would strengthen and modernize Canada’s food safety system and
“protect Canadian families from potentially unsafe food.”66
Understood against the backdrop of swill milk, BSE, and a growing culture of
food fears more generally, the prohibition of the sale of raw milk is neither
surprising nor out of place. Food and agriculture is currently one of the most
regulated sectors of the Canadian economy. The industry is subject to federal,
provincial, and municipal oversight and policies, laws, and regulations every step
along the supply chain. In order to ensure public trust in food systems, the state
must be seen to exercise effective control over food production, processing, and
distribution. The use of technological advances to respond to crises and minimize
risk has been the preferred approach of policy makers.67 Foods are now genetically
engineered to resist diseases and tolerate the application of herbicides. Irradiation is
used to control contamination and extend products’ shelf life. As new technologies
are introduced to deal with hazards created by industrial agriculture, the irony of
stories like the one that follow is unfortunately lost on regulatory officials who
continue to ban raw milk sales for safety and sanitary reasons.
61
Ibid.
62
63
Sage (2007), p. 203.
64
65
SC 2012, c. 24.
66
Canadian Food Inspection Agency, Government of Canada (2012).
67
224 S.B. Richardson
In 2007, the Minister of Agriculture of Quebec released a report about the safety
of the province’s milk supply.68 The report found that the collection processes of
bulk-transported milk allowed for the contamination of the milk with cow hair,
insects, feces, and hay. This revelation could understandably be alarming to many,
but the provincial milk association responded that there should be no cause for
concern because contamination at the transportation stage was subsequently dealt
with through mandatory processes of filtration, pasteurization, and homogenization.
In other words, rather than respond to the findings of the report with thorough
investigations and policies to curtail such contamination, it was argued that con-
tamination of bulk-transported milk was an acceptable industry practice because it
could subsequently be treated and thus ensure consumer safety.
In the same way that anthropology students recognize the parody in Miner’s
fictitious ethnography of the Nacirema, thinking with an enlarged mentality reveals
the absurdity of this reasoning. One can imagine the reaction of someone like
Michael Schmidt to the provincial milk association’s statement. Schmidt cannot
rely on pasteurization to sanitize his milk for consumption. He must attend to his
cows with care and precaution throughout the milking process, sterilize his equip-
ment, and avoid any contamination during the bottling and distribution stages. This
comes at a financial cost to him and his customers since he must work on a smaller
scale to produce a product that meets his community’s moral standards. As an
outsider observing the norms of the industrial food industry, Schmidt can see what
many public health officials choose either to ignore or to conceal: the overarching
concern of the dominant food system is not to prevent food contamination or
produce quality foods but rather to produce as much food as possible in a highly
complex production, processing, and distribution system and then respond to the
problems it creates as an afterthought.69
4.2 The Relativity of Food Safety: Challenging the Neutrality

of Law and Science
Twentieth-century food safety legislation emerged as a reaction to specific food

safety issues created by the industrialization of food systems. However, this legis-
lative approach to protecting consumers against risks has been piecemeal and
narrow, focusing on discrete solutions to safety problems in order to ensure the
continued viability of conventional industrial agriculture.70 A critical reading of
food safety laws asks why, after a century of sustained food scares, public health
officials continue to prioritize technological solutions that legitimize otherwise
unsustainable agricultural practices. Why not question the desirability of
68
Canadian Broadcasting Corporation (2007).
69
70
Sage (2007), p. 203.
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maintaining a model of production that is vulnerable to such widespread systemic

failures in the first place?
The formal justification for the prohibition of raw milk sales in Canada is
grounded in public health discourse and focuses almost exclusively on food safety.
The state’s position is that it is fulfilling its public health responsibilities by banning
the sale of raw milk. It pits scientific evidence about the hazards of consuming
unpasteurized milk against the anecdotal and subjective belief of raw milk advo-
cates in its nutritional benefits. Moreover, it refuses to engage with the normative
imperatives underlying the choice of some producers and consumers to opt out of
the conventional dairy market and negotiate illegal private arrangements to cir-
cumvent regulatory controls.
The narrow focus of public discourse around the safety of raw milk illustrates the
power of a dominant narrative to obscure all other considerations. Policies based on
food safety claim that strict adherence to a particular set of sanitary procedures is
the only way to ensure the safety of our food supply and public health. They also
suggest that food law and policy is merely an extension of health policy rather than
a complex web of interdisciplinary and cross-sectoral interests that also include the
environment, the economy, trade rules, labor rights, and animal welfare standards.
Dominant narratives, or “stock stories,” are compelling to their subscribers
because of their seeming neutrality; their coercive power to perpetuate a particular
view of reality is disguised.71 Contemporary food safety discourse is one such stock
story in our society. It forcefully and repeatedly perpetuates a particular set of
values about industrial food systems while discounting others, through frequent
reference to apparently uncontroversial principles of “sound science” and “scien-
tifically based evidence,” a seemingly “unassailable platform of authority and
influence” in the field of food law and policy making.72
However, stock stories are not neutral. And neither is science. The narratives
upon which we rely to understand the world simultaneously shape the way in which
we see and interact with it. Slowly and imperceptibly, “these patterns of percep-
tion,” writes Delgado, “become habitual, tempting us to believe that the way things
are is inevitable, or the best that can be in an imperfect world.”73 Science, like law,
and like all the stories we tell, cannot hold a single truth. Scientific knowledge is
contested, and this is especially true in the field of human health.74 Ultimately,
science is one way of attempting to make sense of the world, and a human enterprise
“prone to all the infelicities, peccadillos, errors, biases and serendipities that plague
(or bless) any human undertaking.”75 This is why Arendt’s invitation to train the
mind to go visiting is so important. Critical thinking requires engaging with a
plurality of normative orders and worldviews.
71
Delgado (1989), p. 2422.
72
Sage (2007), p. 206.
73
Delgado (1989), p. 2416.
74
Katchatourians (2001), p. 21.
75
Findlay and Chalifour (2013), p. 42.
226 S.B. Richardson
Appeals to science, and the corresponding implication that legal questions have
“objective” or “correct” answers, ignore marginalized perspectives. They also
obscure the value judgments that lie at the heart of any legal inquiry.76 Food law
and policy, as in any area of decision making, will always involve trade-offs that
require moral and political judgments. The decision of public health officials to
focus on science, safety, and acceptable levels of risk is itself a value judgment. It
purports to speak in universals about facts and truth while in fact shifting attention
away from the values that lead authorities to defend industrial food systems and
ignore the potential benefits of alternative food systems that offer a more sustain-
able, more socially just, and more ethical approach to food.77 Safety, in other
words, is relative. It cannot be reduced to an inherent, biological characteristic of
food and is highly contextual.78
The relativity of food safety was even noted by the trial judge in the Schmidt
case, who expressed surprise at Ontario’s “farm family exception” for raw milk.
Given the province’s firm position about the public health risks arising from human
consumption of raw milk, it would be reasonable, he wrote, to expect the province
to prohibit all consumption of unpasteurized milk in Ontario.79 Instead, provincial
laws permit dairy farmers and members of their family to drink raw milk. Is the
state saying that the health of urban milk consumers is more important than those of
rural farmers? Or is the farm family exception confirmation that evaluations of
acceptable levels of risk are based on context, as well as science?
Prohibiting the sale of raw milk is one solution to ensuring the safety of Canada’s
food supply. But it is not the only one. In the United States, there exist a range of
regulatory responses that vary from state to state. Food and Drug Administration
(FDA) regulations prohibit interstate sales of raw milk but allow states to adopt
their own rules governing intrastate sales. In 2014, 20 states had a complete ban on
raw milk sales, while 30 states permitted some form of raw milk sales.80 Most of the
permitting states have regulatory systems to oversee these sales, including licensing
requirements or sanitation testing. Retail sales are permitted in some states, while
others restrict sales to on-farm purchases, farmers’ markets, cow-share programs,
and exemptions for raw milk sold as pet food (even if it ends up being consumed by
humans).81
Canada and the United States have similar food systems. Regulatory and eco-
nomic boundaries between the two have become increasingly porous, and Canada
76
Delgado (1989), p. 2441.
77
Sage (2007), p. 207.
78
Nestle (2003), p. 16, “[. . .] A food may be safe for some people but not others, safe at one level
of intake but not another, or safe at one point in time but not later. Instead, we can define a safe
food as one that does not exceed an acceptable level of risk. Decisions about acceptability involve
perceptions, opinions, and values, as well as science.”
79
R v Schmidt, 2011 ONCJ 482, para 2.
80
Anderson (2014), p. 426.
81
Anderson (2014), pp. 419–421.
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now imports over 58% of its food from the United States, resulting in a de facto
acceptance of American health and safety regulations for food producers and
processors.82 Legislative variations over the sale of raw milk in Canada and the
United cannot be attributed solely to science, or food safety. Rather, they reflect
different value judgments and perceptions about acceptable levels of risk.
As demand for raw milk in North America grows, the number of documented cases
of illness caused by its consumption is also on the rise.83 There are risks associated
with the consumption of unpasteurized milk, and these should neither be ignored
nor downplayed. Raw milk itself is not necessarily a dangerous substance, but it
does contain bacteria that are susceptible to contamination. Pasteurization reduces
exposure to contamination, and it baffles many that people voluntarily expose
themselves to the risk of ingesting harmful bacteria.84
No food system is perfect. Lawmaking is not about legislating universal rules; it
is about the application of good judgment to a particular situation. Food law and
policy is the outcome of a series of cost-benefit analyses and risk management. The
twentieth century model of industrial agriculture emphasized a productivist
approach to food that could supply domestic and global markets with cheap and
plentiful products capable of traveling to remote locations and with long shelf lives
to last through the winter months. But productivism comes at a cost: declining food
quality, environmental degradation, disintegration of rural economies, and increas-
ingly inhumane treatment of agricultural workers and farm animals. The normative
foundations of the raw milk movement lead its supporters to weigh things differ-
ently. They value food quality, sustainability, and social justice and believe that
they are more important pillars in a food system than quantity, sanitation, and cost.
To focus on the scientific arguments for and against unpasteurized milk is to
distract attention away from the more fundamental debate taking place between raw
milk advocates and public health officials about what food systems should look
like. This paper has adopted a legal pluralist framework to highlight the risks of
ignoring the normative claims of marginalized outsiders that challenge the domi-
nant worldview.
While legal pluralism encourages openness to multiple perspectives, it does not
offer a specific roadmap for overcoming fundamental disagreement. Greater dia-
logue might lead public health officials to listen to the concerns of raw milk
advocates without necessarily agreeing that raw milk is safe for human consump-
tion. Similarly, raw milk advocates can appreciate the public health concerns
82
83
Kindy (2014).
84
Sage (2007), p. 204.
228 S.B. Richardson
underlying Canada’s prohibition on raw milk sales while nevertheless choosing to

accept this risk in order to consume the foods of their choice. Legal pluralism does
not solve conflicts, but it allows for the conceptualization of a world of hybrid legal
spaces where disagreements can at least be recognized and managed respectfully.85
References
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Canadian Public Health Association. The story of milk. http://www.cpha.ca/en/programs/history/
achievements/09-shf/milk.aspx. Accessed 31 Aug 2016
Cossman B (1997) Turning the gaze back on itself: comparative law, feminist legal studies, and the
postcolonial project. Utah L Rev 1997:525–544
Cover RM (1983) Foreword: nomos and narrative. Harv L Rev 97:4–68
Delgado R (1989) Storytelling for oppositionists and others: a plea for narrative. Mich L Rev
87:2411–2441
Findlay S, Chalifour N (2013) Science and the scientific method. In: Science manual for Canadian
judges. National Judicial Institute, Ottawa, pp 39–142
Global News (2015) Ontario raw milk farm raised, equipment seized by public health officials:
farmer. Globalnews.ca. http://globalnews.ca/news/2255254/ontario-raw-milk-farm-raided-
equipment-seized-by-public-health-officials-farmer. Accessed 31 Aug 2016
Gumpert DE (2013) Life, liberty and the pursuit of food rights: the escalating battle over who
decides what we eat. Chelsea Green, White River Junction
Health Canada and the Public Health Agency of Canada (2011) Raw or unpasteurized milk. http://
healthycanadians.gc.ca/eating-nutrition/safety-salubrite/raw-milk-lait-cru-eng.php. Accessed
31 Aug 2016
Jenkins JE (2008) Politics, pasteurization, and the naturalizing myth of pure milk in 1920s Saint
John, New Brunswick. Acadiensis 37:86–105
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Katchatourians GG (2001) How well understood is the “science” of food safety? In: Phillips P,
Wolfe R (eds) Governing food: science, safety and trade. McGill-Queen’s University Press,
Montreal, pp 13–23
Kindy K (2014) Political push for raw, unpasteurized milk is increasing access, but illnesses are
up, too. Washington Post. http://www.washingtonpost.com/politics/political-push-for-raw-
unpasteurized-milk-is-increasing-access-but-illnesses-are-up-too/2014/04/04/e62bc884-b443-
11e3-8020-b2d790b3c9e1_story.html. Accessed 31 Aug 2016
Kurtz HE et al (2013) Scaling biopolitics: enacting food sovereignty in Maine (USA). Paper
presented at Food sovereignty: a critical dialogue, Yale University, New Haven., 14–-
15 September 2013
La Via Campesina (1996) Food sovereignty: a future without hunger. Rome. www.viacampesina.
org/imprimer.php3?id_article38. Accessed 31 Aug 2016
Macdonald RA, McMorrow T (2007) Wedding a critical legal pluralism to the laws of close
personal adult relationships. Eur J Legal Stud 1:319–356
Macdonald RA, Sandomierski D (2006) Against nomopolies. N Ir Legal Q 57:610–633
Martinez S et al (2010) Local food systems: concepts, impacts, and issues. ERR 97, U.-
S. Department of Agriculture, Economic Research Service
Merry SE (2013) McGill convocation address: legal pluralism in practice. McGill LJ 59:1–8
Meyer LR (2010) The justice of mercy. University of Michigan Press, Ann Arbor
Miner H (1956) Body rituals among the Nacirema. American Anthropologist 58:503–507
Nestle M (2003) Safe food: bacteria, biotechnology and bioterrorism. University of California
Press, Berkeley
Patel R (2010) What does food sovereignty look like? In: Wittman H, Desmarais A, Wiebe N (eds)
Food sovereignty: reconnecting food, nature and community. Fernwood, Halifax
Postmedia Network (2015) Standoff ensues after large raid targeting raw milk advocate Michael
Schmidt’s Ontario farm. National Post. http://news.nationalpost.com/news/canada/large-raid-
targets-raw-milk-advocate-michael-schmidts-durham-ontario-area-dairy-farm. Accessed
31 Aug 2016
Rencher KL (2012) Food choice and fundamental rights: a piece of cake or pie in the sky. Nev LJ
12:418–442
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a challenge to alternative food enterprises in Ireland. In: Maye D, Holloway L, Kneafsey M
(eds) Alternative food geographies: representation and practice. Elsevier, Oxford, pp 205–223
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The Canadian Press (2015) Public health officials raid Ontario raw milk farm. Toronto Star.
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farm-seize-equipment.html. Accessed 31 Aug 2016
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Adv Res 2:87–105
Food E-Commerce as a New Tool
for the Growth of the Economy. European
Legal Framework for Information
of Prepacked Food Sold Online
Silvia Rolandi
1 Introduction
1.1 The Birth of Food E-Commerce, Consumers’ Needs

and Habits
Only a few years after the Internet started to be a network for civilians, in the early
1990s, the first items were sold online.1 This initiated a new way to sell and
purchase products, commonly known as electronic commerce or e-commerce.2
The history of the Internet—developed in a very short period of time—gives an
idea about how fast technological progress can change and influence people’s
habits, as well as commerce and trade. In only 20 years, communication has been
radically transformed, thus affecting the way we conclude, deal, and manage our
daily time.
1
Ryan (2010), p. 120.
2
Internet is the result of a military study that started during the Cold War. The United States army
needed a secure tool that was capable of transferring information. When the project grew and its
potentials were discovered, in 1968 Internet was used to connect four universities in the United
States and share research. Around the mid-late 1970s telecommunication companies started to be
interested in digital network but it was only in the early 1990s that computers and Internet started
to be a network for civilians. It was the 25th of July 1994 when the Time reported in its cover “the
strange new world on the Internet.” In those years the connections developed and in 8 years its
diffusion grew 135 times. The Web completely changed the way humans communicate. In the late
1990s as Internet started to be more accessible to a wider number of people, e-commerce
developed. See, for further information, Ryan (2010), p. 23.
S. Rolandi (*)
e-mail: s.rolandi@santannapisa.it

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232 S. Rolandi
In academia and public institutions, several definitions have been elaborated for
the term e-commerce.3 For the purpose of this paper, the following definition is
adopted: “e-commerce refers to various online commercial activities focusing on
commodity exchanges by electronic means, Internet in particular, by companies,
factories, enterprises, industrial undertakings and consumers.”4 Such a definition
has the advantage of being broad and comprehensive, thus taking into account the
different trades that rapidly and continuously evolve through the web. Purchasing
goods and having them delivered to our house is not a new concept.5
However, the ability of buyers to compare a vast range of products and prices via
the Internet has swiftly revolutionized commerce all over the world.6 These trans-
actions can be easily made among actors without any concerns of where they are
located in the world. Furthermore, they allow the consumers to match their specific
needs with a significantly wider supply and to satisfy their demands7 and at the
same time to have the item delivered at home. These online transactions may
operate among businesses (known as business-to-business relationships or B2B),
between businesses and consumers (known as business-to-consumer or B2C), or
among consumers (known as C2C).8
This paper aims at exploring uncertainties and normative lacks regarding the
fast-moving area of food e-commerce in Europe in B2C transactions; it is therefore
3
E.g.: “business, technology, society, and skills of buying and selling of products and services with
the aid of internet and computer or handheld devices which involves the process of ordering
products or services to the time of delivery to the consumer or customer,” see Cujoe (2014),
p. 136.; “any kind of transaction that is made using digital technology, including transactions over
open networks such as the Internet, closed networks such as electronic data interchange (EDI) and
debit and credit cards” see, Gillies (2008), p. 24; “An e-commerce transaction is the sale or
purchase of goods or services, conducted over computer networks by methods specifically
designed for the purpose of receiving or placing of orders. The goods or services are ordered by
those methods, but the payment and the ultimate delivery of the goods or services do not have to be
conducted online. An e-commerce transaction can be between enterprises, households, individ-
uals, governments, and other public or private organisations. To be included are orders made over
the web, extranet or electronic data interchange. The type is defined by the method of placing the
order. To be excluded are orders made by telephone calls, facsimile or manually typed e-mail,” see
OECD (2011); “E-commerce can be defined generally as the sale or purchase of goods or services,
whether between businesses, households, individuals or private organizations, through electronic
transactions conducted via the internet or other computer-mediated (online communication)
networks. The term covers the ordering of goods and services which are sent over computer
networks, but the payment and the ultimate delivery of the goods or service may be conducted
either on- or off-line,” see Eurostat (2016). See, for further information, Comandè and Sica
(2001), p. 5.
4
Qin et al. (2009), pp. 2–4.
5
Postal commerce existed before as to purchase a product and have it delivered at home (as milk).
6
Levy and Weitz (2001), p. 60.
7
This aspect is relevant in consideration of the fact that purchases choices of consumers might be
influenced or sometimes determined by religious rules or ethic choices.
8
Grunert and Ramus (2005), p. 381.
Food E-Commerce as a New Tool for the Growth of the Economy. European Legal. . . 233
useful to report statistical data, giving to the reader an insight about the extent of the
phenomenon.
In 2017, Statista9 affirmed that the projected international revenue of B2C
e-commerce10 amounts to US$1,362,041 with an expected annual growth rate of
11.5%, thus suggesting a possible result of US$2,108,097 in 2021.11 Considering
the European market, the expected revenue of B2C e-commerce amounts to US
$310,300,000 in 2017, and the expectation for the annual growth rate is 8.5%,
therefore predicting US$429,956,000 for 2021.12 This data clearly suggest how
European e-commerce market growth is high compared to the international context.
The structure of the paper is twofold. The first section will provide an overview
of the behavior of the consumers, with the aim of exploring the reasons why the
provision of correct and clear information regarding food is essential to implement
the future expansion of the food e-commerce. The second section will investigate
the EU legal framework on mandatory labeling requirements for prepacked food
that are applicable to e-commerce.
1.2 Food E-Commerce, Driven Factors for the Consumers
In the middle of the 1990s, one of the first online grocery stores was created in the
United States; the company name was Webvan. The business plan object was
conceived to attempt to radically change the approach to online grocery shopping,13
but the implemented business model did not satisfy the consumer demand of that
9
Statista is an international statistics portal based in Hamburg (Germany) that provides data from
different sources. For further information, see http://www.statista.com/aboutus/. For a detailed
analysis of the methodological approach and for an overview, see https://cdn2.statista.com/static/
img/emarkets/2015-dmo-methodology-en.pdf. Accessed 7 June 2017.
10
For the purposes of Statista statistics, the eCommerce means “market encompasses the sale of
physical goods via a digital channel to a private end user (B2C). Incorporated in this definition are
purchases via desktop computer (including notebooks and laptops) as well as purchases via mobile
devices such as smartphones and tablets. The following are not included in the eCommerce
market: digitally distributed services (see instead: eServices), digitally distributed goods in B2B
markets nor digital purchase or resale of used, defective or repaired goods (reCommerce and C2C).
The eCommerce market considers the following product categories: “Fashion,” “Electronics and
Media,” “Food & Personal Care,” “Furniture & Appliances” and “Toys, Hobby & DIY.” See
https://www.statista.com/outlook/243/100/ecommerce/worldwide#. Accessed 7 June 2017.
11
See https://www.statista.com/outlook/243/100/e-commerce/worldwide#. Accessed 7 June 2017.
12
See https://www.statista.com/outlook/243/102/e-commerce/europe. Accessed 7 June 2017.
13
See Ryan (2010), p. 128: “Together they attempted to rebuild groceries from the bottom up. The
strategy was simple: ‘get big fast’ (gbf) to secure the market before competitors could stake their
claim. If ‘the Net changes everything’ had been the first misleading maxim of the dot-com boom,
‘get big fast’ was the second. In July 1999 Webvan ordered the construction of 26 massive
distribution and delivery centres at a gargantuan cost of $1 billion. Webvan already had vast
distribution centres in operation. The new centres would allow it to open into new regions across
the us.”
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234 S. Rolandi
time and ended in complete failure, as reported in the literature.14 Meanwhile, the
British Tesco became successful in the United Kingdom and expanded15 by
adopting a different approach toward the consumers’ needs and habits.16 Indeed,
Tesco considered the fact that a change in consumers’ habits in grocery shopping at
the store would have not been possible in just a few years. Thus, it would not be
effective to invest only or mainly in e-commerce but was more thoughtful and
profitable to slowly and slightly guide consumers’ habits to a new approach of
purchasing food. Food e-commerce has grown much since those first approaches,
and today, as reported in the data below, the expectation for continued development
is even greater.
As to facts specifically regarding food e-commerce17 (considering food and
beverages), in 2017, Statista statistics points out that the projected revenue amounts
globally to US$41,691,000 with an expected annual growth rate of 15.2%,
suggesting a possible result of US$73,473,000 in 2021.18 In Europe, the same
observation leads to the fact that the expected revenue amount in 2017 is US$
14
See Asprey et al. (2013), p. 26: “The company expanded into new cities too quickly and spent
too much money not only on the warehouses, but also on the vans to deliver the food and computer
systems and proprietary software to run the operations.” Therefore, it seemed that the failure was
imputed to the costs the Company would have had to stand, as the New York Times reported:
“Grocery stores already operate on razor-thin profit margins without the added expense of
delivery, and the perishable nature of many foods does not make operating from a central location
feasible. By some estimates, an on-line grocer must do 10 times the volume of a typical store to be
successful.” See Fisher (1999). See also Ryan (2010), p. 128.
15
Tesco adopted a more cautious approach. Firstly Tesco tested on one store what would have been
the reaction of the consumers having the opportunity to place orders using a phone, a fax or a
website. Secondly it considered if building separate warehouses was preferable instead of keeping
all the products in the same storage as those that were going to be sold directly. Both consider-
ations were made to avoid expenses without knowing the possible reactions of the consumers to
this new offered service. This first attempt was made in 1996, then 3 years later, in 1999, the
decision was made and they launched the service in 100 stores. Tesco also considered another
factor and, contrary to the policy of other online grocery stores that were not charging after a
certain amount of money spent in the order, was charging for all the deliveries. This approach gave
Tesco the possibility to keep the expenses low. This caused another side effect on consumers’
behavior related to the fact that the orders they were then placing were of a higher amount of
money because they independently had to pay for the delivery. See Ryan (2010), p. 129.
16
See Reinhardt (2001).
17
“The e-Commerce market segment ‘Food & beverages’ contains the online sale of fresh and
packaged foods (excluding baby food), delicacies and beverages. This market segment covers for
example the sale of fruit, vegetables, pasta, snacks, sweets, refrigerated products, frozen food, soft
drinks and alcoholic drinks via a digital channel. The most significant channel for the online sale of
food and beverages are, at present, the online shops of the large supermarkets and warehouse
stores, for example, walmart.com or subscription services such as HelloFresh. Not included in this
market segment are delivery services of ready-to-eat meals. All monetary figures refer to the
annual gross revenue and do not factor in shipping costs,” available at https://www.statista.com/
outlook/253/100/food-beverages/worldwide#takeaway. Accessed 7 June 2017.
18
See https://www.statista.com/outlook/253/100/food-beverages/worldwide#takeaway. Accessed
7 June 2017.
11,430,000 with an expectation for annual growth of 12.5%, predicting a market

volume of US$18,283,000 in 2021.19 The expectations of growth, thus, both at the
international and the European level, are very close. It means that for Europe, in
terms of possibilities, food e-commerce sector constitutes an important opportunity.
Considering the European scenario, food is sold using e-commerce in several
ways. For example, an eStore may sell food items only online,20 a grocery store
may sell food items online and offline,21 farmers are more commonly selling
directly their products via the Internet,22 companies are shipping specific ingredi-
ents with the related recipes in order to allow us to cook our own meal,23 as well as
companies are providing online a list of restaurants and organizing the delivery of
the previously ordered food ready to be eaten at home.24
In the food sector, consumers’ choices are usually25 strongly related to their
personal culture.26 And conversely, culture influences the way in which consumers
purchase food and their choice to use the Internet to buy groceries.27 The academic
literature has identified the main factors that influence consumer’s behavior, thus
affecting their choices.28 The consumer’s concerns related to traditional grocery
buying are mainly (1) time consumption29 and (2) physical effort. Considering the
19
See https://www.statista.com/outlook/253/102/food-beverages/europe. Accessed 7 June 2017.
20
It is relevant to underline the fact that this stores were not born exclusively for food e-commerce.
They have in fact different sections of products offered and also a specific section dedicated to
food. For example Amazon Fresh, Alibaba, Cortilia (ITA).
21
E.g. Eataly (ITA), Esselunga (ITA), Tesco (UK).
22
E.g. Azienda Agricola Agrisole (ITA), Il Porcospino Azienda Agricola (ITA), Blue Ridge
Specialty Foods (USA).
23
E.g. Blue Apron (USA), Plated (USA), Hello Fresh (USA).
24
E.g. Just eat (ITA), myFOOD (ITA).
25
The fact that it cannot be stated that food choices are always related to culture is determined by
two aspects; the first one is related to the availability of food and the second one to the matter
related to health issues and, consequently, to food consumptions that are mandated (for example,
those cases in which there is an allergy or when because of a disease there are specific goods that a
person cannot eat). For further information, see Belasco (2008), p. 2; Germanò et al. (2014);
Albisinni (2015), p. 11; Costato et al. (2015); Masini (2015); Germanò (2016).
26
Here, the term culture is used as a combination of multiple factors starting from eventual
religious rules that the consumer has to follow because of its religious orientation (for example,
Halal food consumers do not eat pork) or because of possible ethical choices (Ethical choices are
related to the tendency developed by consumers to select products considering a combination of
factors for example the labour conditions of the workers that have been contributed to produce the
goods used, another example could be made thinking about the selection of products that have
been grown in lands that were previously belonging to the Mafia. Commonly, a label indicates if
the product has those characteristics) and then because cultures, in relation to food, are also
determined, and it might be better to say used to be, by the geographical position of the population.
27
Here the word culture is used to indicate habits.
28
See Grunert (2002), p. 275; Seitz (2013); Passaro and Salomone (2017), p. 10, Koch (2014).
29
Time consuming factor is related to the fact that usually they have to plan ahead when they have
to go for grocery and usually walk there or use a car and consequentially have to park it, adding
time to the entire process.
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236 S. Rolandi
first aspect, (1) consumers can now choose, on the one hand, to purchase 24 h a day,
7 days a week, from anywhere, and, on the other hand, they can indicate the date
and the time of delivery to any location, thus significantly reducing the amount of
time spent in doing grocery shopping. Considering food shopping as one of those
unavoidable tasks in life, e-commerce offers the chance of reducing the need for the
consumer to spend time in organizing, planning, and purchasing groceries. Further-
more, consumers may have access to a wider selection of food and can more easily
make choices in relation to their own lifestyle.30 Indeed, their possibility of
choosing among different products is not restricted as they can examine them
minutely online. In relation to the second aspect (2), e-commerce may completely
eliminate the physical effort of carrying heavy, bulky grocery items from the store
to the house.31 The consumer may have the order dispatched directly. The physical
effort is particularly relevant for certain categories of consumers with physical
constraints.32 These categories include each person’s living situation and family
assets, for example a person spends all day at work or has a part-time job and cannot
have more time to go shopping or a person is living by himself instead of a family
composed of more people, who can share the duties as to go and do grocery.
Specifically concerning food items, it is interesting to notice that while price33
and convenience are considered the greatest factors influencing general online
purchases, in food e-commerce they do not represent the only concerns; in fact,
consumers utilize it also to find niche products34 and therefore are willing to pay
higher prices for them. The price factor for this group of consumers is not a
consideration. Consumers are also willing to look for certain products in relation
to their lifestyle, making a conscious choice when selecting a specific item.
Conversely, one important point in shopping offline remains the physical expe-
rience of being at the store that allows consumers to touch, smell, and see the
product, with the further chance to interact directly with the shop assistants.
Replacing this cultural (and traditional to some extent) way of doing food shopping
is and will continue to be the major challenge in further developing food
e-commerce. Indeed, it involves the essential trust generated in traditional food
transactions. Marketing studies have shown that building trust and confidence
between producers and consumers results in a direct increase of sales.35 This
30
Grunert and Ramus (2005), p. 393, defines lifestyle as “a mental construct which mediates
between life values on the one hand side and perceptions of concrete products or alternative
courses of action on the other side, i.e. lifestyle summarizes how people believe that a certain
group of products or actions contributes to the attainment of those life values which motivate the
behaviour of these people. Lifestyle defined in this way is clearly related to both exposure,
attention to and comprehension of information.”
31
Seitz (2013), p. 130.
32
E.g. Seniors, disables, pregnant women. See Seitz (2013), p. 129.
33
Ibid.
34
E.g. food websites of specific products as wine directly from a winery or other specialties
directly purchased from the producer.
35
Liang and Huang (1998), p. 34.
challenge may be associated with the provision of complete and accurate informa-
tion in food labeling, thus attempting to restore such a direct connection with
consumers also online. Giving information through labeling represents an alterna-
tive way for producers to communicate directly with consumers, thus becoming
able to provide information even without a direct physical experience. For this
specific purpose, the relevant legislation regarding the information to be provided to
consumers assumes a fundamental role. This may result in the opportunity for
consumers to make informed choices when purchasing food from a distance, as
well as for producers to use a different and new tool to do business.
2 The European Legal Framework for E-Commerce

in Relation to Mandatory Food Labeling Rules
2.1 The Digital Agenda
E-commerce has been widely discussed at the EU level. Indeed, it has been
recognized the role that e-commerce may potentially play toward economic growth
and development, both for the EU Single Market and its further international
expansion. E-commerce is considered as a real new possibility for the European
economy to rise. This awareness is shown in the Digital Agenda for Europe in
which one of the seven pillars is the creation of a Digital Single Market.36 Within
this framework, e-commerce is understood as a new means that is capable to boost
competition and efficiency in the European economy, considering, among others,
that online retailers are increasingly representing an alternative to offline stores.
As already analyzed, consumers’ trust regarding online purchases is understood
as one of the main obstacles toward the development of a Digital Single Market.37
In order to address such a challenge, the European Commission “identifies three
areas where action should be taken to boost e-commerce: information, redress and
enforcement.”38 For the purpose of this paper, the discussion is limited to informa-
tion area. Within this, the EU legislator has already started to move steps with
regard to information that shall be provided to the consumers during food
e-commerce purchases. Particularly, Regulation 1169/2011 (so-called FIC)39
36
One of the two areas, included in the Single Market Act, identified for the consolidation of the
Digital Single Market, is the necessity to build a stronger trust of the consumers on e-commerce.
See European Commission (2011), p. 5.
37
European Commission (2015).
38
39
Regulation (EU) 1169/2011 of the European Parliament and of the Council of 25 October 2011
on the provision of food information to consumers, amending Regulations (EC) 1924/2006 and
(EC) 1925/2006 of the European Parliament and of the Council, and repealing Commission
Directive 87/250/EC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC,
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238 S. Rolandi
introduced relevant changes to the previous legislation.40 While Directive 2000/13/

CE was previously on “the labelling, presentation and advertising of foodstuffs,”
Regulation 1169/2011 broadly refers to “food information to consumer.”41 Within
such a new legal framework, the European legislator took e-commerce into account
for the first time, specifically including it into the broader picture of “distance
sales.”42
2.2 The EU Mandatory Food Information Regulation

on Prepacked Food Applicable to E-Commerce
Specific provisions to be applied to e-commerce are provided. The legislator

expressly refers to the existence of different techniques to offer and sell food to
consumers “by means of distance communication.”43 As stated in the definition, the
buyer and seller are not physically present; this aspect reinforces the importance of
the information provided when the product is offered as it is the only meaningful
instrument of communication between the two parts. From the definition of means
of distance communication, we can assume that the Regulation is also applicable in
those cases in which food is sold using the e-commerce tool.44
Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives
2002/67/EC and 2008/5/EC and Commission Regulation (EC) No 608/2004, OJ [2011] L 304.
40
Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the
approximation of the laws of the Member States relating to the labelling, presentation and
advertising of foodstuffs, OJ [2000] L 109.
41
For further information see Sirsi (2011); Albisinni (2011); Germanò (2012); Di Lauro (2012);
Costato et al. (2015), p. 193; Albisinni (2015), p. 187; Garcia (2015), p. 10; Bolognini (2016).
42
The Regulation 1169/2011, because of its own nature, will be identically applied to all Member
States. The Regulation, as stated in its whereas 1, says “Article 169 of the Treaty on the
Functioning of the European Union (TFEU) provides that the Union is to contribute to the
attainment of a high level of consumer protection by the measures it adopts pursuant to Article
114 thereof,” is meant to protect consumers and at the same time to achieve the fulfillment of their
right to information about the food they are willing to buy, being able to make an aware choice. As
stated under article 3 of the FIC, and anticipated in whereas three of the same Regulation, “in order
to achieve a high level of health protection for consumers and to guarantee their right to
information, it should be ensured that consumers are appropriately informed as regards the food
they consume. Consumers’ choices can be influenced by, inter alia, health, economic, environ-
mental, social and ethical considerations.” Therefore, the right to information is strictly related to
the fact that “consumers’ choices can be influenced by, inter alia, health, economic, environmen-
tal, social and ethical considerations,” underling again how important are labels for the consumers,
considering that they are the tool used to carry the information.
43
Article 2(2)(u) of the general provisions defines distance communication as “any means which,
without the simultaneous physical presence of the supplier and the consumer, may be used for the
conclusion of a contract between those parties.”
44
See, among others, Vaque (2014), pp. 53–64; van der Veer (2015), p. 286; Bolognini (2015),
pp. 129–157; Bolognini (2016), p. 306.
Within the abovementioned assumption, article 14 of Regulation 1169/2011 is

applicable to food e-commerce in terms of distance selling.45 The legislator distin-
guishes its application between prepacked46 and non prepacked foods;47 the fol-
lowing section will focus specifically on prepacked foods. Article 14 includes also a
distinction. Furthermore, it includes provisions on (A) which information has to be
provided mandatory and (B) how such information has to be presented to the
consumer.
Firstly (A), the same information required for items sold offline has to be
provided with the products sold online. Even if specific timeline differentiates the
requirements that the seller needs to fulfill: the first concerns when the product is
offered (1) and the second when the order is placed (2).
When the product is offered online (1), all mandatory information should be
provided. 48 Under article 2(2)(c), mandatory information is defined as “the partic-
45
It is relevant to make a consideration, as already made by other authors, regarding the fact that in
the proposal for a Regulation of the European Parliament and of the Council on the provision of
food information to consumers (presented by the Commission on 30.01.2008, COM(2008)
40 final, C&-0052/08) in the article 15 (art. 14 of the actual Regulation), regarding distance
selling, it gives a specific reference to define distance communication, which does not exist in the
new version. The just mentioned article conforms to the definition of Art. 2 of Directive 97/7/EC of
the European Parliament and of the Council of 20 May 1997 on the protection of consumers in
respect of distance contracts, OJ [1997] L 144. The cited article contains the definition of distance
contract given by art. 2.1: “‘distance contract’ means any contract concerning goods or services
concluded between a supplier and a consumer under an organized distance sales or service-
provision scheme run by the supplier, who, for the purposes of the contract, makes exclusive
use of one or more means of distance communication up to and including the moment at which the
contract is concluded.” The same Directive, in its Annex I, gives also a list of methods of
communication covered by art. 2 and does not refer to e-commerce. At the same time, the
Directive has been repealed by Directive 2011/83/EU of 25 October 2011, which in art. 2.7
gives a definition of distance contract as “any contract concluded between the trader and the
consumer under an organised distance sales or service-provision scheme without the simultaneous
physical presence of the trader and the consumer, with the exclusive use of one or more means of
distance communication up to and including the time at which the contract is concluded,” but no
reference to this definition exists anymore in the last version of the food labeling regulation. As
already been underpinned in the doctrine, the definition of distance contract can be used, consid-
ering that the Directive does not refer to a specific sector and for this reason is widely applicable.
46
Art. 2(2)(e) of the Regulation 1169/2011 states that “‘pre packed food’ means any single item for
presentation as such to the final consumer and to mass caterers, consisting of a food and the
packaging into which it was put before being offered for sale, whether such packaging encloses the
food completely or only partially, but in any event in such a way that the contents cannot be altered
without opening or changing the packaging; ‘pre packed food’ does not cover foods packed on the
sales premises at the consumer’s request or pre packed for direct sale.”
47
According to Art. 44(1) of the Regulation 1169/2011, non-pre packed food are “offered for sale
to the final consumer or to mass caterers without pre packed” or foods “packed on the sales
premises at the consumer’s request or pre packed for direct sale.”
48
Artt. 9-35 and Annex III of the Regulation 1169/2011 and all mandatory EU laws that are
applicable. See for further information DG SANCO (2013) “Questions and Answers on the
application of the Regulation (EU) N 1169/2011 on the provision of food information to
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240 S. Rolandi
ulars that are required to be provided to the final consumer by Union provisions.”49
An exception is provided for “best before” date and the “use by” date, as established
under article 9(f). Such a provision has been likely included taking into consider-
ation that the seller does not know when the product will be purchased; therefore, it
would be difficult to continuously adjust the dates for each offered item. After all,
when the products is delivered (2), all mandatory information has to be provided as
listed in article 9, including “best before” or “use by” date.50 The entire provision
does not apply in case of food sold by automatic vending machines or in automatic
commercial premises.51
Considering the presentation of the information (B), it is worthwhile to note that
recital 9 of Regulation 1169/2011 provides that information has to be “clear,
comprehensible and legible.” The rationale behind this comprehensive approach
on presentation of food information is explained in recital 26. Indeed, the legislator
specifies that research studies have demonstrated how important all aspects related
to legibility are, considering these as essential elements “in maximising the possi-
bility for labelled information to influence its audience and that illegible product
information is one of the main causes of consumer dissatisfaction with food labels.”
In this vein, the term “influence” is related to habits that nowadays consumers have
developed, in particular food choices based on personal health needs, personal
lifestyle, and thus preferences.52 In the specific case of e-commerce, all the contents
of a website may be considered as information given to the consumer. For this
particular motive, its contents should fulfill such legal requirements.
consumers.” http://ec.europa.eu/food/safety/docs/labelling_legislation_qanda_application_reg1169-
2011_en.pdf. Accessed 16 February 2016.
49
With the expression mandatory information the legislator wanted to refer to all mandatory EU
rules laws in general is specified, even if the document does not have a legal value, for further
information DG SANCO (2013) Questions and Answers on the application of the Regulation
(EU) N 1169/2011 on the provision of food information to consumers. http://ec.europa.eu/food/
safety/docs/labelling_legislation_qanda_application_reg1169-2011_en.pdf. Accessed 16 February
2016.
50
Art. 9(1) Regulation 1169/2011, mandatory information: “In accordance with articles 10 to
35 and subject to the exceptions contained in this Chapter, indication of the following particulars
shall be mandatory: (a) the name of the food; (b) the list of ingredients; (c) any ingredient or
processing aid listed in Annex II or derived from a substance or product listed in Annex II causing
allergies or intolerances used in the manufacture or preparation of a food and still present in the
finished product, even if in an altered form; (d) the quantity of certain ingredients or categories of
ingredients; (e) the net quantity of the food; (f) the date of minimum durability or the ‘use by’ date;
(g) any special storage conditions and/or conditions of use; (h) the name or business name and
address of the food business operator referred to in article 8(1)(i) the country of origin or place of
provenance where provided for in article 26(j) instructions for use where it would be difficult to
make appropriate use of the food in the absence of such instructions; (k) with respect to beverages
containing more than 1,2 % by volume of alcohol, the actual alcoholic strength by volume; (l) a
nutrition declaration.”
51
Art. 14(3) Regulation 1169/2011: “Point (a) of paragraph 1 shall not apply to foods offered for
sale by means of automatic vending machines or automated commercial premises.”
52
See Germanò (2012), p. 272.
Articles 12 and 13 of Regulation 1169/2011 respectively rule the “Availability

and placement of mandatory food information” and the “Presentation of mandatory
particulars,” providing very strict and detailed provisions. They include, among
others, requirements on where the information has to be provided, where to place
such information on the product, font size, as well as the language that has to be
utilized.53 However, the same comprehensive and detailed approach is not used in
the case of e-commerce. Indeed, the European legislator leaves a certain degree of
leeway to the business operator. Article 14(1)(a) states that the information “shall
appear on the material supporting the distance selling or be provided through other
appropriate means clearly identified by the food business operator.” If such means
are provided, they should not cause additional costs for the consumers. The
application of these requirements seems to be particularly difficult for the
e-commerce. Taking into consideration the conformity of a web page, it might be
not easy for the business operator to find a format that complies with the require-
ment of providing information in a clear and understandable form.
In many cases, common practices have been established by business operators.
Taking the example of the linguistic requirement, a website in itself has no
geographical boundaries; thus, it is not clear in which language the seller should
give the information. Indeed, the potential buyer may be located in any place in the
world. The established practice consists in a limitation of their obligations, by
declaring where the business operator is willing to ship the products and thus
implicitly confining the linguistic requirement to the place where the products
may be delivered.
A brief recognition of different websites of food sellers gives immediately the
idea that the operator does not know in which direction his steps should move. A
question that should be posed, and which we should focus the attention in the future,
is: “how could it be possible to determine specific cases of responsibilities54 if the
regulation is not clearly establishing specific requirements?” The obscure and
53
Art. 15 Regulation 1169/2011 “Without prejudice to article 9(3), mandatory food information
shall appear in a language easily understood by the consumers of the Member States where a food
is marketed. 2. Within their own territory, the Member States in which a food is marketed may
stipulate that the particulars shall be given in one or more languages from among the official
languages of the Union. 3. Paragraphs 1 and 2 shall not preclude the particulars from being
indicated in several languages.”
54
Regarding the responsibility, whereas 21 of the Regulation 1169/2011 declares that “in order to
prevent a fragmentation of the rules concerning the responsibility of food business operators with
respect to food information it is appropriate to clarify the responsibilities of food business
operators in this area. That clarification should be in accordance with the responsibilities regarding
the consumer referred to in article 17 of Regulation (EC) No 178/2002” that specifically refers to
business operators. As regards to this specific matter in the document related to “Questions and
Answers on the application of the Regulation (EU) N 1169/2011 on the provision of food
information to consumers,” 13 January 2013, p. 7, there is a suggestion referring to the possible
identification of the business operator responsible, recognized in the “owner of the website.” This
answer does not seem to be realistic and leads to other relevant question related to the ownership of
the website and for this reason will be object of a future detailed study.
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242 S. Rolandi
spread statement regarding food presentation in e-commerce is a concrete obstacle

for a correct application of the regulation.
It is legitimate to think that, at the time in which the Regulation was written, the
legislator was already aware of this lack of clarity in the case of e-commerce. In
fact, under recital 51, he declares that information rules should be adaptable “to a
rapidly changing social, economic and technological environment,” and for this
purpose, under article 12(3), he recognizes an implementing power to the Com-
mission to adopt delegated acts. After 5 years, nothing has been changed.
The paper puts into evidence what is considered to be the key challenge to
transform e-commerce into and opportunity for consumers and producers. From
the consumers’ point of view, using e-commerce as a platform to purchase food
products meets three main needs: time saving, reduction of physical effort, and
possibility of purchasing niche products directly from the producer. From the
producers’ point of view, it is a business opportunity to be paid for their work on
a fair amount operating directly in the market reducing or eliminating distributors.
Trust is one of the main obstacles for the growth of this sector. Information and
particularly clear information are trust builder factors; therefore, a clear and
effective regulation in this sector seems to be needed. Focusing precisely on
Europe, taking into consideration the fact that legislation applicable to the topic
exists, few comments arise without the conceit to provide an exhaustive recognition
but with the purpose to be a base for further detailed studies.
The absence of clarity for the application of the specific provision referring to
the presentation of the information seems to represent an obstacle. Considering that
the food operator can deliberately decide how to present the product offered, for the
consumers might become even more difficult to find the information. Furthermore
the provision, as stated, seems to limit the use of e-commerce to small producers,
which might not have the possibility to consult with a professional for the inter-
pretation of the unclear disposal. Surely enough, to create the website and present
their products, they need to be careful because the legislator, as already said, leaves
to the business operator the choice regarding how to provide the information.
The absence of a specific provision regulating the responsibility and, conse-
quently, the liability for the violation of one of the obligations related to the
presentation of the information in distance selling contributes to a lack of clarity.
This causes uncertainty and restrains the small producers’ willingness to open to
e-commerce due to the fact that, in particular, small ones might not have the
possibility to afford an eventual legal action caused by a misinterpretation of
the law.
The absence of a specific provision regarding the language requirement in the
case of distance selling represents another obscure element that the producers must
deal with.
On the light of the previously expressed underlined points, the actual legislation
does not seem to give enough clear and strong legal framework capable of
reinforcing the basis of the weak trust on the development of food e-commerce.
Further analysis of the topic and eventual clarifications from the legislator are
certainly desirable.
References
Albisinni F (2011) The new EU Regulation on the provision of food information to consumers.
Rivista di diritto alimentare 5(2):32–36
Albisinni F (2015) Strumentario di diritto alimentare europeo. Utet, Torino
Asprey W, Royer G, Ocepek MG (2013) Food in the internet age. Springer, Heidelberg
Belasco W (2008) Food: the key concepts. Berg, New York
Bolognini S (2015) Le informazioni sull’origine degli alimenti nella vendita a distanza. In:
Germanò A, Rubino V Giuffrè 2015: La tutela dell’origine dei prodotti alimentari in Italia,
nell’Unione Europea e nel commercio internazionale, Atti del Convegno IDAIC di Alessan-
dria, 21–22 maggio 2015
Bolognini S (2016) Gli obblighi informativi a carico del professionista nella vendita a distanza di
prodotti alimentari. Rivista di diritto agrario 3:306–339
Comandè G, Sica S (2001) Il commercio elettronico: profili giuridici. Giappichelli, Torino
Costato L et al (2015) Compendio di diritto alimentare. Cedam, Milano
Cujoe D (2014) Electronic commerce: state-of-the-art. Am J Intell Syst 4(4):135–141. doi:10.
5923/j.ajis.20140404.02
DG SANCO (2013) Questions and answers on the application of the Regulation (EU) N 1169/
2011 on the provision of food information to consumers. http://ec.europa.eu/food/safety/docs/
labelling_legislation_qanda_application_reg1169-2011_en.pdf. Accessed 16 Feb 2016
Di Lauro A (2012) Nuove regole per le informazioni sui prodotti alimentari e nuovi analfabetismi.
La costruzione di una “responsabilita del consumatore”. Rivista di diritto alimentare 6(2):4–12
European Commission (2011) Commission Staff Working Paper: Bringing e-commerce benefits to
consumers. Accompanying the document: communication from the Commission to the
European Parliament, the Council, the European Economic and Social Committee and the
Committee of the Regions. A coherent framework to boost confidence in the digital single
market of e-commerce and other online services. http://ec.europa.eu/internal_market/e-com
merce/docs/communication2012/SEC2011_1640_en.pdf. Accessed 5 May 2016
European Commission (2015) Consumer conditions scoreboard, consumer at home in the
single market. http://ec.europa.eu/consumers/consumer_evidence/consumer_scoreboards/11_
edition/index_en.htm. Accessed 2 Mar 2016
Eurostat (2016) Glossary: e-commerce. Statistic explained. http://ec.europa.eu/eurostat/statistics-
explained/index.php/Glossary:E-commerce. Accessed 21 Mar 2016
Fisher L (1999) On-line grocer is setting up delivery system for $1 billion. New York Times,
New York
Garcia AC (2015) La protección de los Consumidores a través del nuevo etiquetado de alimentos
dise~nado por la Unión Europea. Rivista di diritto alimentare 9(1):10–38
Germanò A (2012) Le indicazioni in etichetta (e la loro natura) e i segni degli alimenti. Rivista di
diritto agrario 2:207–280
Germanò A (2016) Manuale di diritto agrario. Gaippichelli, Torino
Germanò A et al (2014) Diritto agroalimentare. Le regole del mercato degli alimenti e
dell’informazione alimentare. Giappichelli, Torino
Gillies LE (2008) Electronic commerce and international private law, a study of electronic con-
sumers contracts. Ashgate, Hampshire
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Grunert KG (2002) Current issues in the understanding of consumer food choice. Trend Food Sci
Technol 13(8):275–285
Grunert KG, Ramus K (2005) Consumers’ willingness to buy food through the internet. Br Food J
107(6):381–403
Koch S (2014) A theory of grocery shopping. Food, choice and conflict. Berg, New York
Levy M, Weitz B (2001) Retailing management. McGraw-Hill, New York
Liang TP, Huang JS (1998) An empirical study on consumer acceptance of products in elec-
tronic markets: a transaction cost model. Decis Support Syst 24(1):29–43
Masini S (2015) Corso di diritto alimentare. Giuffrè, Milano
OECD (2011) Definition of e-commerce. Glossary of statistical terms. https://stats.oecd.org/
glossary/detail.asp?ID¼4721. Accessed 16 May 2016
Passaro P, Salomone S (2017) Consumer innovativeness in food industry: from literature review
some indications for business practices. Int J Bus Admin 8(2):10–24
Qin Z et al (2009) Introduction to e-commerce. Springer, Heidelberg
Reinhardt A (2001) Tesco bets small – and wins big. Business Week
Ryan J (2010) A history of the internet and the digital future. Reaktion Books, London
Seitz C (2013) E-grocery as new innovative distribution channel in the German food retailing. In:
Dermol V, Sirca NT, Dakovic G (eds) MakeLearn 2013: active citizenship by knowledge
management & innovation. Proceedings of the management, knowledge and learning. Inter-
national School for Social and Business Studies and University of Zadar, Zadar. 19–21 June
2013
Sirsi E (2011) Il diritto all’educazione del consumatore di alimenti. Rivista di Diritto Agrario 4:
496–524
Van der Veer L (2015) Product liability for online food suppliers. Eur Food Feed Law Rev 10(4):
286–303
Vaque LG (2014) ¿Qué información hay que facilitar al consumidor cuando adquiere productos
alimenticios por internet o mediante otros sistemas de comunicación a distancia?. Revista
CESCO de Derecho de Consumo 12:53-64. http://www.revista.uclm.es/index.php/cesco.
Accessed 20 Mar 2016
Part III
Land Tenure, Investment Law
and Agriculture
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Land Governance, Investment Law,
Agriculture, and the Rights of Local
Populations
Adriana Bessa and Margherita Brunori
1 Introduction
The debate on large-scale investments in land for agriculture and the rights of local
populations has received great attention in recent legal literature. Land grabbing,
i.e. large-scale land acquisition and leases for plantation farming, exposes serious
conflicts of interest between states and international investors on the one side and
rural populations on the other, and highlights the critical asymmetric relations
between these actors. While states and international investors enter into agreements
for the use of large tracts of land and the natural resources comprised therein,
including water and biodiversity, local dwellers are dispossessed of their lands and
thus lose their livelihood, shelter, and ultimately the basis of their social and
cultural relations. The questions then arises as to what is the role of law in
regulating international investment agreements in terms of land governance.
Perhaps the first step to answer this question is to understand the different interests
at stake: the interest of the state hosting the investment, the interests of the investor, the
interest of the local populations living where the investment project will be
implemented, and the interests of wider society in terms of preserving the environment
as well as cultural manifestations of tangible and intangible nature. These different
interests relate to diverse areas of law, including but not limited to trade law and
taxation, human rights, and the laws governing the use and preservation of nature and
the cultural heritage.1 The various levels of regulation also need to be considered.
1
See discussion on this topic at Cotula (2016), pp. 9 et seqq. See also Borras et al. (2013).
A. Bessa (*)
Geneva Academy of International Humanitarian Law and Human Rights, Geneva, Switzerland
e-mail: adriana.bessa@geneva-academy.ch
M. Brunori
e-mail: margherita.brunori@santannapisa.it

248 A. Bessa and M. Brunori
While international law regulates trade and investment agreements between states and
foreign investors, land tenure is often governed by national and at times subnational
laws and regulations, including local customs and traditions.2 This multisectorial and
multilevel nature of land governance regulation all too often leads to clashes between
different branches of law. Conflicts between the rights of investors ruled by interstate
trade agreements and the rights of local populations enshrined in international human
rights law, national constitutions, and local customary norms, are one example.
International society has not been blind to this phenomenon. In fact, the last
decade has been marked by the endorsement or the establishment of several
international instruments that set out new rules for the governance of land at the
international level. The Voluntary Guidelines on the Responsible Governance of
Tenure of Land, Fisheries and Forests, for example, affirms that states and nonstate
actors should recognize, respect, protect, and promote all legitimate tenure rights.
Endorsed by the FAO Committee on Food Security in 2012, the Voluntary Guide-
lines has been praised for being, thanks to a very inclusive negotiation process, the
most progressive and detailed international instrument dealing with land gover-
nance and tenure.3 The wide legitimacy enjoyed by this document is due to the
innovative structure of the forum that created it.4 Indeed, the Committee of Food
Security was reformed in 2009 in order to institutionalize the participation of civil
society, which makes the Committee the most inclusive forum dealing with land in
the United Nations.5
The Guiding Principles on Extreme Poverty and Human Rights also addressed
the issue of land governance. This document is the result of an intense consultation
by the United Nations Special Rapporteur on extreme poverty and human rights
with states and other stakeholders. In 2001, the former United Nations Commission
on Human Rights triggered the draft, which involved several rounds of discussion
by the Human Rights Council before being adopted by consensus in Resolution n
21/11 and welcomed by the United Nations General Assembly in Resolution n
67/164, in 2012. Among other measures, the Guidelines encourages states to
implement land distribution and agrarian reform programs and ensure that people
living in poverty have adequate access to productive resources to produce food for
themselves and their families. Moreover, the Guiding Principles advance the
standards set by the General Comment n 12 of the Committee of Economic, Social
and Cultural Rights on the right to adequate food6 and introduces the term “food
sovereignty” for the first time in an official document of the United Nations by
2
On this point see Cotula (2016), pp. 82 et seqq.
3
Seufert (2013), pp. 181–183.
4
Seufert (2013), pp. 181–186.
5
De Schutter (2010); Fraundorfer (2015), p. 351 et seqq; Brem-Wilson (2015), pp. 76 et seqq.
6
General Comment No. 12: The Right to Adequate Food (Art. 11 of the Covenant) (12 May 1999)
http://www.refworld.org/docid/4538838c11.html. Accessed 19 August 2016.
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Land Governance, Investment Law, Agriculture, and the Rights of Local. . . 249
stating that “lack of food sovereignty compromises autonomy and dignity.”7 The
term “food sovereignty” was coined by the civil society organization La Via
Campesina and has been defined as “the right of peoples to healthy and culturally
appropriate food produced through ecologically sound and sustainable methods,
and their right to define their own food and agriculture systems.”8 The concept of
“food sovereignty” tightens the link between the right to food and land access by
affirming that “the rights to use and manage our lands, territories, waters, seeds,
livestock and biodiversity [must be] in the hands of those of us who produce food.”9
Also in 2012, the World Bank Group launched a round of revisions of the policy
frameworks of its agencies aimed at fostering their accountability and the Interna-
tional Financial Corporation (IFC) released the updated version of the IFC Perfor-
mance Standards on Environmental and Social Sustainability with new standards
for corporate responsibility in IFC-supported projects. The Standards, first adopted
in 2006, were revised in order to better incorporate emerging sustainability issues
for business, including climate change, business and human rights, supply chain
management, gender issues, stakeholder engagement, indigenous peoples, and
biodiversity and ecosystem services, and notably strengthened the safeguards on
land. At the World Bank, extensive restructuring of the Operational Policies of the
International Bank for Reconstruction and Development and the International
Development Agency, the two public branches of the World Bank Group,
addressed land issues more carefully and took into account recent international
developments on the subject.
The notion of the human right to land has also finally been taken under consid-
eration by the Human Rights Council. In its 21st session, the Council adopted
Resolution n 21/19, by which it decided to establish an open-ended intergovern-
mental working group to negotiate, finalize, and submit a draft United Nations
declaration on the rights of peasants and other people working in rural areas.10 The
current version of the draft declaration provides rural dwellers and their communi-
ties with the right, individually or collectively, to land and other natural resources
found therein, on which they rely for shelter, as well as sociocultural and economic
activities. The document stresses the obligation of states to protect rural populations
from arbitrary displacement and forced eviction—an obligation that was affirmed in
the 1998 UN Guiding Principles on Internal Displacement11 and reiterated in the
7
UN Human Rights Council, 21st session, Final Draft of the guiding principles on extreme poverty
and human rights, submitted by the Special Rapporteur on extreme poverty and human rights
Magdalena Sepulveda Carmora, A/HRC/21/39 (18 July 2012). https://documents-dds-ny.un.org/
doc/UNDOC/GEN/G12/154/60/PDF/G1215460.pdf?OpenElement. Accessed 27 March 2017.
8
Declaration of the Forum for Food Sovereignty, Nyéléni 2007, https://nyeleni.org/spip.php?
article290. Accessed 27 March 2017.
9
Ibid.
10
Draft Declaration presented by the Chair-Rapporteur (A/HRC/WG.15/4/2) http://www.ohchr.
org/EN/HRBodies/HRC/RuralAreas/Pages/4thSession.aspx. Accessed 27 March 2017.
11
UN Document, Report of the Representative of the Secretary-General, Mr. Francis M. Deng,
submitted pursuant to Commission resolution 1997/39. Addendum: Guiding Principles on Internal
reports of the United Nations Special Rapporteurs to housing12 and food.13 It also
introduces the state duty to provide traditional local communities with preferential
access to the natural resources they derive their livelihoods from and the protection
of natural commons and systems of collective use and management of nature.14
At the judicial level, there have been major developments in the legal recogni-
tion and protection of the rights of rural populations in light of large-scale devel-
opment projects. The jurisprudence of the Inter-American Court of Human Rights
has been particularly responsive in this regard, especially with regard to the
territorial rights of indigenous peoples. Notably, the court consolidated the under-
standing that restrictions to the land rights of indigenous peoples are only legitimate
if proved to be necessary, proportional, previously established by law and should
not, in any circumstance, entail a de facto denial of the very survival of the
community. In addition, states must guarantee that three fundamental safeguards
are observed: that communities’ free, prior, and informed consent for the develop-
ment of economic activities in their land is obtained; that communities receive an
equitable share of the benefits deriving therefrom; and that environmental and
social impact assessments are carried out.15 In Africa, the decision of the African
Commission on Human and People’s Rights in the case Social and Economic
Rights Action Center (SERAC) and the Center for Economic and Social Rights
(CESR) vs. Nigeria adds another dimension to this discussion. Notably, the Com-
mission underscores that the degradation of land and natural environments and the
destruction of food sources of local communities by industrial activities constitute a
violation of the right to food.16
Displacement E/CN.4/1998/53/Add.2 (11 February 1998). http://www.un-documents.net/gpid.

htm. Accessed 27 March 2017.Principle 9 states that “States are under a particular obligation to
protect against the displacement of indigenous peoples, minorities, peasants, pastoralists and other
groups with a special dependency on and attachment to their lands.” Particularly noteworthy, the
document highlights that this protection applies inter alia “In cases of large-scale development
projects, which are not justified by compelling and overriding public interests” (Principle 6.2).
12
UN Human Rights Council, 22nd session, Report of the Special Rapporteur on adequate housing
as a component of the right to an adequate standard of living, and on the right to
non-discrimination in this context, Raquel Rolnik A/HRC/22/46 (24 December 2012). http://
www.ohchr.org/EN/Issues/Housing/Pages/AnnualReports.aspx. Accessed 27 March 2017.
13
UN Document, The Right to Food Report to the General Assembly A/65/281 (11 August 2010)
available at: http://www.ohchr.org/EN/Issues/Food/Pages/Annual.aspx. Accessed 27 March 2017.
14
Draft Declaration presented by the Chair-Rapporteur (A/HRC/WG.15/4/2) http://www.ohchr.
org/EN/HRBodies/HRC/RuralAreas/Pages/4thSession.aspx. Accessed 27 March 2017.
15
See generally on indigenous peoples’ rights, Gilbert (2016), more specific on the jurisprudential
articulation of indigenous’ rights Pentassuglia (2011) and in particular Inter-American Court of
Human Rights, Saramaka People v. Suriname, judgement 12 August 2008. http://www.
worldcourts.com/iacthr/eng/decisions/2008.08.12_Saramaka_v_Suriname.pdf. Accessed
27 March 2017.
16
Nwobike (2005), pp. 129–146.
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These normative and judicial developments have reverberated outside the

human rights field, as the Glamis Corp vs. USA case shows. The case exposed the
potential negative impacts of mining projects on the environmental and cultural
rights of indigenous peoples and demonstrated that crucial human rights should be
taken into account in international investment agreements.17 More recently, the
International Criminal Court decided to broaden its remit to consider cases involv-
ing crimes associated with land grabbing and the destruction of the environment.
This decision opened the door to the prosecution of governments and individuals
for crimes against humanity under the Rome Statute whenever land concessions
and leases lead to massive human rights abuses.18
All these documents and court decisions have in common the recognition of land
as an essential resource for human beings and communities, whose continued and
secure access fulfills basic human rights and guarantees decent livelihoods.
2 The Structure of the Part
The papers in this part of the volume look at the various interests and legal
conundrums surrounding large-scale investments in land for agriculture and shed
light on the current and potential impacts of these investments in the lives and
livelihoods of local populations. They offer an extensive discussion of the com-
plexities involved in foreign investments of this kind and raise a number of
questions regarding the role of international law with respect to land governance
and the protection of the rights of local populations.
The first paper of this part discusses how the United Nations General Assembly
(UNGA) has addressed the issue of land governance throughout its history. In her
contribution, Margherita Brunori strives to unravel the epistemological questions
arising from the concept of land rights, including access to land, land tenure, and
ownership, and the way it is applied in the UNGA’s resolutions and other relevant
international instruments. At the same time, she seeks to understand the UNGA’s
position concerning the possible limits of the principle of national sovereignty with
regard to land use and governance. Human rights considerations have been increas-
ingly included in the UNGA’s resolutions, which, as the author notes, have often
referred to the fundamental needs of vulnerable individuals and groups, including
rural women and indigenous peoples. In this sense, the recognition of land rights
has been deemed tantamount to facilitating the rights to housing, livelihood, food,
cultural identity, and non-discrimination.
17
For an appraisal of this case, see Cantegreil (2011).
18
See International Criminal Court, The Office of the Prosecutor, Policy Paper on Case Selection
and Prioritisation (15 September 2016). https://www.icc-cpi.int/itemsDocuments/20160915_
OTP-Policy_Case-Selection_Eng.pdf. Accessed 20 Jan 2017.
Francesca Spagnuolo addresses in her paper the controversial issue of large-

scale land acquisition for food and biofuel production, with the focus on its
implications for accessing fresh water resources and the rights of local populations.
As the production of both food and biofuel requires the use of fresh water,
investment agreements encompassing large-scale land acquisitions and leases usu-
ally endow investors with controversial water entitlements. The author explains that
these agreements tend to violate the rights of the local population to access local
water sources, for all too often these rights are drastically restricted if not
completely denied. Against this backdrop, the author discusses the impacts of
“water grabbing” and the rights of local populations. She does this from the
perspective of the substantive right to water, which the United Nations General
Assembly recognized as a human right in 2010,19 and the procedural rights to
consultation and fair compensation.
The paper of Federica Violi furthers the debate on large-scale land acquisitions,
this time from the viewpoint of the hybridism of state contracts and the interaction
between domestic and international law in the regulation of investment contracts.
Beginning with a case study involving an investment contract between the Republic
of Cameroon and a US-based private company, the author describes the multilevel
regulatory framework that applies to contracts regarding large-scale land acquisi-
tions and leases. The author analyzes the umbrella and stabilization contract clauses
and discusses how these clauses “internationalize” the host states’ contractual
obligations, thus triggering the application of international law and inducing con-
flicts between the states’ obligations deriving from investment law and human
rights law. She discusses the applicability of the rules of treaty interpretation
entrenched in the Vienna Convention on the Law of Treaties to solve these
conflicts. In light of the limitations of the traditional harmonization approach
towards conflicting rules, the author makes the case for exploring innovative
solutions to accommodating the different and conflicting state obligations
pertaining to investments.
Complex and multilevel legal frameworks governing land possession and own-
ership and reflections on large-scale land acquisition negotiations are also the
subject of analysis in the paper of Margherita Baldarelli. The author looks at the
interplay between customary and statutory legal systems and the fundamental role
of local traditional authorities and tribal chiefs in the land deal negotiations. Three
case studies in different regions of Zambia serve as a background for the author’s
discussion of the intricacies of legal pluralism. Her study exposes the tensions
between the domestic legal regime, which in part reproduces the property regimes
inherited from colonial rules, and customary land tenure systems, according to
which tribal chiefs and local traditional authorities are vested with powers to decide
on the allocation and eventual alienation of community land. The study discusses
the distortions and loopholes of the law, as well as the controversial practices that
19
UN General Assembly Resolution 64/292, The human right to water and sanitation A/RES/64/
292 (28 July 2010). http://www.un.org/en/ga/64/resolutions.shtml. Accessed 27 March 2017.
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ultimately undermine the rights of local communities and their members to access
information on the terms of land negotiations and to fully participate in decision
making.
Finally, the paper written by Katarina Dirgasová and Jarmila Lazı́ková explores
the notion of food sovereignty at the domestic level and discusses the tensions
between the promotion of the rights of small farmers on the one hand and policies to
enhance industrial agricultural production and to meet environmental standards on
the other. The authors describe recent normative developments in Slovakia trig-
gered by its accession to the European Union, which involved important changes in
the land access and ownership regime in the country. Their piece discusses how the
recent rush for the acquisition of land for nonagricultural purposes has had a
significant impact on Slovaks’ food security and sovereignty.
References
Borras SM et al (2013) The challenge of global governance of land grabbing: changing interna-
tional agricultural context and competing political views and strategies. Globalizations 10
(1):161–179
Brem-Wilson J (2015) Towards food sovereignty: interrogating peasant voice in the United
Nations committee on world food security. J Peasant Stud 42:73–95
Cantegreil J (2011) Implementing human rights in the NAFTA regime – the potential of a pending
case: Glamis Corp v USA. In: Dupuy PM, Petersmann EU, Francioni F (eds) Human rights in
international investment law and arbitration. Oxford University Press, Oxford
Cotula L (2016) Foreign investment, law and sustainable development: a handbook on agriculture
and extractive industries. Natural Resource Issues No. 31. IIED, London
De Schutter O (2010) Report large-scale land acquisitions and leases: a set of minimum principles
and measures to address the human rights challenge presented to the Human Rights Council.
A/HRC/13/33/Add.2
Fraundorfer M (2015) Experiments in global democracy: the cases of UNITAID and the FAO
committee on world food security. Glob Constitut 4(3):328–364
Gilbert J (2016) Indigenous peoples’ land rights under international law: from victims to actors.
Brill Nijhoff, Leiden
Nwobike JC (2005) The African Commission on human and peoples’ rights and the demystifica-
tion of second and third generation rights under the African Charter: social and economic rights
action center (SERAC) and the center for economic and social rights (CESR) v. Nigeria. Afr J
Leg Stud 1(2):129–146
Pentassuglia G (2011) Towards a jurisprudential articulation of indigenous land rights. Eur J Int
Law 22(1):165–202
Seufert P (2013) The FAO voluntary guidelines on the responsible governance of tenure of land,
fisheries and forests. Globalizations 10(1):181–186
Access to Land and Security of Tenure
in the Resolutions of the United Nations
General Assembly
Margherita Brunori
1 Introduction
Land governance has historically covered a crucial position in the sphere of

national sovereign power1 and can be described as a matter “which is essentially
within the domestic jurisdiction of any state.”2 Nevertheless, since the early years,
the United Nations, through their bodies and agencies, have been releasing reports
and recommendations on the governance of land.3 The General Assembly of the
United Nations in particular has, with a considerable degree of continuity,
addressed the question of access to land within the activities of the Second
Committee, which deals with issues pertaining to economic growth and develop-
ment. Land has also been the object of the agenda of the Third Committee of the
Assembly, which copes with agenda items relating to a range of social and
humanitarian affairs, and human rights. In the ambit of this committee, access to
land has been addressed with regard to the rights of particularly vulnerable cate-
gories of people, such as women, indigenous peoples, and internally displaced
people, and as instrumental for the realization of particular human rights, such as
the right to adequate food and the right to housing. Recent developments suggest
the possibility, in the future, to find references to access to land also with regard to
the right to development.4
1
Lehavi (2010), pp. 425 et seqq.; see also Cotula (2016), pp. 149 et seqq.
2
Article 2, section VII of the United Nations, Charter of the United Nations, 24 October 1945,
1 UNTS XVI. http://www.refworld.org/docid/3ae6b3930.html. Accessed 10 August 2016.
3
Irving (1965), pp. 37–45.
4
Indeed, the on-going debate within the Working Group of the Right to Development of the
Human Rights Council is envisaging the inclusion of the question of the equitable distribution of
M. Brunori (*)
e-mail: margherita.brunori@santannapisa.it

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256 M. Brunori
Another factor that is concurring to the augmented internationalization of land

governance is the phenomenon of foreign direct investments in agriculture, or land
grabbing. The transfer of the jurisdiction of those investments from the national
judicial system to international arbitral tribunals affects the systems of land rights
by creating a disparity of means of protection available for the investors’ property
rights and the local communities’ land rights.5 The sudden increase of investments
in agriculture, and more in general on natural resources’ exploitation, which
occurred by the second half of the last decade, is showing to the international
community the harmful effects of the violation of customary tenure rights for local
communities.6
In the attempt of reconstructing the state of the evolution of an agreement, at
international level, on some basic principles pertaining to the regulation of land, it
deems relevant to operate a survey on the United Nation General Assembly (UNGA)
resolutions. UNGA resolutions, seen as the expression of the coordination and debate
of the member countries of the United Nations of any questions or any matters within
the scope of the Charter of the United Nations,7 can constitute a resource for the
comprehension of the evolution of the international community’s understanding of
land governance. UNGA resolutions are nonbinding documents that nevertheless
have a hortatory value and can have relevance in the international law making under
several viewpoints.8 According to Sloan, there are several factors that help the test of
whether UNGA resolutions are producing legal effects, such as the nature and
content, the circumstances in which resolutions were adopted, the terms used and
the intent behind it, the voting patterns, the effective power that states are prepared to
put behind a resolution once it is adopted, and the pattern of repetition and recitation
of a resolution. Other factors are the states’ and international organizations’ practice
and the implementation procedure; for instance, the elaboration of general multilat-
eral conventions and of noncontractual instruments having a normative function or
objective could be an index of the legal effect of some resolutions.9
Passing each resolution dealing with land matters under the test suggested by
Sloan is outside the scope of this chapter, but, from a general appreciation, it can be
said that the majority of the resolutions that constitute the object of this survey were
not adopted with the intention of creating an obligation, for they were not drafted in
a precise legal language, nor were the employed words mandatory. Nevertheless,
land in the debate on the operative sub-criteria for the realization of the Right to Development.
Malhotra (2013), pp. 393 et seqq.
5
See generally Cotula (2012).
6
See generally Cotula (2014).
7
Article 10 of the United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI.
http://www.refworld.org/docid/3ae6b3930.html. Accessed 10 August 2016.
8
Arangio-Ruiz sums up saying that resolutions are neither legislative nor sufficient to create state
practice not only because the General Assembly is not authorized to legislate but also because its
members, do not “mean it.” Arangio-Ruiz (1972), p. 457. See also Schwebel (1979), p. 303
et seqq.
9
Sloan (1991), pp. 103 et seqq.
Access to Land and Security of Tenure in the Resolutions of the United. . . 257
many of these resolutions influenced the practice of international organizations and

led to the production of a number of documents which scope is that of influencing
states’ behavior. Furthermore, from the analysis of these resolutions, it can be
remarked what Sloan defines the cumulative factor, i.e. the adoption of resolutions
with the same object over time, which could ultimately be an index of the effect of
“limiting of the area of domestic jurisdiction, and obversely, the expansion of the
fields of international competence.”10 Resolutions are taken into consideration here
as an expression of UN Members’ general consent on an issue—especially when
they are adopted without a vote or by consensus—and therefore as constituting a
“pool for agreed language” for a subsequent eventual negotiation on the matter.11
The first objective of this study is to see to what extend there is a degree of
consistency—when the issue of land is considered—on the terms with which it is
framed, pointedly land access, land, tenure or property rights, and tenure security;
the values or more general objectives underpinning the discourse on the matter; the
subjects that are identified as bearing a stake with regard to it. The second objective
is to evaluate whether there is conceptual clarity on the terms that are employed or
whether, on the contrary, in different moments and contexts the same terms refer to
different meanings. This will also help in evaluating whether the General
Assembly’s approach follows the topic with a linear evolution or whether it is
rather characterized by discontinuity.
For the purposes of this study, I focused on those resolutions that refer to the
access to land and land tenure in the rural areas; provisions dealing with urban land
tenure, environmental protection with land use and management, land conservation
and improvement lie outside the scope of this research. Equally, I chose not to
systematically analyze all references to women’s equal access and ownership of
land. This choice is due to the fact that the existence of the women’s equal right to
access and ownership of land is, at least in international law, not contested and yet
recognized by the Convention for the Elimination of All Forms of Discrimination
Against Women.12 Another situation that bears a degree of speciality is the
10
Sloan continues saying that “If resolutions are adopted with respect to matters that have
heretofore been dealt with as a matter of domestic jurisdiction, they may have the effect of
transforming them into matters of international concern, not only within the Organization, but in
international law and in the broader field of international relations.” Sloan (1991), p. 103.
11
“The resolutions adopted by the Assembly therefore reflect the web of activity of the UN system
as a whole, even if these are not wholly implemented.” Jordan (1976), p. 648.
12
Article 14 (g) “To have access to agricultural credit and loans, marketing facilities, appropriate
technology and equal treatment in land and agrarian reform as well as in land resettlement
schemes”; Article 16(h): “the same right for both spouses in respect of the ownership . . . of
property”; and Article 15, paragraph 2, “States Parties shall accord to women, in civil matters, a
legal capacity identical to that of men and the same opportunities to exercise that capacity. In
particular, they shall give women equal rights to conclude contracts and to administer property and
shall treat them equally in all stages of procedure in courts and tribunals.” UN General Assembly
Resolution 34/180 of 18 December 1979, Convention for the Elimination of all forms of Discrim-
ination Against Women, entered into force on 3 September 1981. http://www.un-documents.net/
a34r180.htm. Accessed 19 August 2016. Article 14 (g) “To have access to agricultural credit and
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258 M. Brunori
protection of indigenous lands. This protection is affirmed in the ILO Convention n

169, reaffirmed in the 2007 United Nations Declaration of the Rights of Indigenous
Peoples and confirmed by several regional human rights tribunals.13 Whereas the
indigenous’ right to their ancestral lands is far from being universally recognized, we
can say that still indigenous peoples have, at least in theory, a stronger protection of
their lands in international law, compared with nonindigenous’ communities.14
The article is divided into two parts: the first presents a historical overview of the
main UNGA resolutions dealing with land matters and analyzes and compares its
contents. The second part tries to reconstruct the meaning of the key concepts found
in the resolutions, confronting them with the understanding of the same terms found
in literature, as to offer a coherent framework of concepts. The concluding part
proposes a general framework for systematizing the many aspects of land access
and security of tenure based on the declination of the principle of equity.
2 Diachronic Analysis of UNGA Resolutions: The

Historical Evolution of the Discourse on Access to Land
and Tenure Security in the UN General Assembly
Agenda
2.1 Land Reform: Resolutions of the First Two UN Decades
The first period that will be analyzed comprehends the first two decades of the UN
activities. Between the ’50s and the early ’60s, the UN General Assembly firmly
promoted the implementation of land reforms that would foster economic growth
and rural development; for this reason, it adopted a number of resolutions titled
“Land Reform.” The attention by the General Assembly was paralleled by an
intensive work brought about by the United Nations Economic and Social Council
(ECOSOC), which resolved that periodical reports should be issued to update on the
international progress in land reform.15 The attention given by the General Assem-
bly to this topic throughout the decade was due to a widespread interest of Member
loans, marketing facilities, appropriate technology and equal treatment in land and agrarian reform
as well as in land resettlement schemes”; Article 16(h): “the same right for both spouses in respect
of the ownership . . . of property”; and Article 15, paragraph 2, “States Parties shall accord to
women, in civil matters, a legal capacity identical to that of men and the same opportunities to
exercise that capacity. In particular, they shall give women equal rights to conclude contracts and
to administer property and shall treat them equally in all stages of procedure in courts and
tribunals.”
13
Anaya and Williams (2001), pp. 84 et seqq.
14
Even though some recent research evidenced how “traditional communities” are emerging as a
subject of international law and their rights to land are increasingly recognized and protected.
Bessa (2015), pp. 330 et seqq.
15
Irving (1965), pp. 37–45.
States on land reform, promoted as a means to increase productivity and decrease

social inequalities.
The actions that were called for in those resolutions are aimed at improving the
conditions of rural population and, in particular, of the tenants, landless agricultural
workers, and small and medium-sized farmers. For instance, Resolution n 401 V
states that attention should be put in some measures such as promotion of “welfare
of agricultural workers and tenants and of small and medium-sized farmers.”16 The
concept is recalled in a very similar wording, notwithstanding the time laps
occurring in between, in Resolution n 524 VI and Resolution n 1932 XVIII. The
first calls for the government to implement land reforms that should assist in the
“raising welfare of population of the under-developed countries and which would
safeguard the interests of small and medium-sized farmers and landless agricultural
workers.”17 The second encourages the Member States concerned to carry out, as
part of their economic and social development programs, the land and other
institutional reforms “necessary for the development of their agrarian structures
and in the interest of landless, small and medium-sized farmers.”18
According to those years’ resolutions, one of the main issues that the land reform
should address is the improvement of land tenure. References to tenure systems
stress on the fact that land tenure should—where appropriate—be changed in order
to overcome the constraints that prevent the improvement of the situation of those
who work in the agricultural sector. Consequently, the General Assembly promotes
the security of tenure of agricultural workers, tenants, and small and medium-sized
farmers and encourages the implementation of tenure arrangements that facilitate
the ownership of land by family farms and cooperatives. In particular, in Resolution
n 524 VI, the General Assembly states that “the systems of land tenure prevent
improvement in the economic and social status of those who work the land” and
therefore calls for the promotion of family-owned and family-operated farms and
cooperative farms, as well as other measures to promote “the security of tenure and
the welfare of agricultural workers and tenants and of small and medium-sized
farmers.”19 Two years later, coming back on the issue, the General Assembly
recommends that Member States, where appropriate, institute land reform measures
to encourage “the ownership of the land by the largest practicable number of the
rural population.”20
16
UN General Assembly Resolution 401, Land Reform A/RES/401 (V) (20 November 1950)
http://research.un.org/en/docs/ga/quick/regular/5. Accessed 21 August 2016.
17
UN General Assembly Resolution 524, Land Reform, A/RES/524(VI) (12 January 1952) http://
www.un.org/documents/ga/res/6/ares6.htm. Accessed 19 August 2016.
18
UN General Assembly Resolution 1932, Means of promoting agrarian reform, A/RES/1932
(XVIII) (11 December 1932) http://research.un.org/en/docs/ga/quick/regular/18. Accessed
19 August 2016.
19
UN General Assembly Resolution 524, Land Reform, A/RES/524 VI (12 January 1952),
20
UN General Assembly Resolution 826, Land Reform, A/RES/826 IX (11 December 1954) http://
research.un.org/en/docs/ga/quick/regular/9. Accessed 19 August 2016.
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260 M. Brunori
Great importance is also given to the provision of other inputs and assistance to
the farmers, such as financial aid, technical assistance, and the promotion of
cooperatives.21 It is deemed to be instrumental to the land reform also the estab-
lishment of agricultural associations and the provision of an appropriate wage that
would allow rural workers to raise their standard of living.22
The value underlying those measures is equity in the access to land. Despite the
lack of a direct declaration of this principle, the General Assembly makes reference
to it while describing the necessary actions of the land reforms. Resolution n 402 V
makes reference to the equitable distribution of land23; in Resolution n 524 VI, the
General Assembly recalls the equitable and useful redistribution of the ownership
of land24; and in Resolution n 826 IX, it affirms that Member States, in
implementing land reform programs, observe “the principle of equitable treatment
on the economic and social fields with a view to improving conditions of the rural
population.”25
Conclusive of this era of land reforms, in 1966 the World Land Reform Con-
ference was held in Rome. On this occasion, 80 countries and various agencies
gathered to exchange experiences on land reform and agreed upon several charac-
teristics that a land reform should have. First, the Conference affirmed that the
principal objective of a land reform should be the redistribution of land for the
benefit of the peasants and farm laborers but that this must be part of a well-
conceived program of economic development. This provision is mirrored by,
among others, Resolution n 1828 XVII, which draws the attention to the impor-
tance of implementing land reform in conjunction with adequate measures of
community development.26 Second, the needs and capacities of the farm population
21
Resolution n 401 of 1950 lists, among the measures that should be given attention, the “appro-
priate action [. . .] to render financial aid to agricultural workers and tenants and to small and
medium-sized farmers through cheap agricultural credit and facilities, comprehensive technical
assistance and the promotion of rural cooperatives” and “taxation policies designed to lighten, to
the greatest possible extent, the tax burden on tenants and small and medium-sized farmers.” UN
General Assembly Resolution 401, Land Reform, A/RES/401 V (20 November 1950) http://www.
un.org/documents/ga/res/5/ares5.htm. Accessed 19 August 2016.
22
With regard to the first aspect, Resolution n 524 states that associations should be supported and
assisted in the organization; Resolution n 826 more generally recommends the “protection of free
establishment of agricultural associations” and the respect of “such institutions of the indigenous
population as may be compatible with economic and social progress and modern techniques.” UN
General Assembly Resolution 524, Land Reform, A/RES/524 VI (12 January 1952); UN General
Assembly Resolution 826, Land Reform, A/RES/826 IX (11 December 1954).
23
UN General Assembly Resolution 402 Development of Arid Lands A/RES/402 V (20 November
1950) http://www.un.org/documents/ga/res/5/ares5.htm. Accessed 19 August 2016.
24
In Resolution n 524 VI the General Assembly expresses its conviction that “the form which an
equitable and useful re-distribution of the ownership of land should take depends [. . .] of the
relationship between density of population, the supply of land and other resources.”
25
UN General Assembly Resolution 826, Land Reform, A/RES/826 IX (11 December 1954).
26
UN General Assembly Resolution 1828 Land Reform A/RES/1828 XVII (18 December 1962)
http://www.un.org/documents/ga/res/17/ares17. Accessed 19 August 2016.
and national conditions should be at the basis for the design of the various tenure
forms. A third point emerging from the Conference is that it is necessary to have the
effective participation of the farm population—through peasant organizations,
trade unions, community development associations, etc.—in the formulation and
implementation of the agrarian reform process in order to achieve its goals. This
provision is found also in Resolution n 524 VI, which calls for governments to
support “the already existing agricultural associations and assist, where appropriate,
in organizing new associations of landless agricultural workers.”27 Finally, the
Conference reaffirms the importance of promoting cooperatives and providing
beneficiaries with adequate credit, technical assistance, and education.28
A relevant contemporary initiative in this regard is the adoption of ILO Recom-
mendation n 132/1968, concerning the improvement of conditions of life and work
of tenants, sharecroppers, and similar categories of agricultural workers. The
recommendation defines the use of the terms and lists in detail the characteristics
and the requirements necessary to promote fair contracts and the overall improve-
ment of the conditions of rural population.29
Two main types of reform were implemented in this period: the first aimed at the
transformation of the previous tenants into owners.30 The second reform type aimed
at the ending of feudal tenure system in the countryside. In some countries (Latin
America and Egypt), the reform was oriented to the promotion of small family
farms, whereas, in countries that followed the socialist pattern of land tenure, toward
collective and production cooperative farms with land belonging to the State.31
What emerges from the resolutions of those years is that an equitable access to
land is the guiding criterion of the economic and social development of rural
population. The equitable access to land is concretely translated in a system of
land tenure that privileges the ownership of the land to “those who work it” and
guarantees fair conditions of tenure and the security of tenure rights. According to
the national context, the government should promote family-owned farms and
27
UN General Assembly Resolution 524, Land Reform, A/RES/524 VI (12 January 1952).
28
ECOSOC (1969), p. 3; ILO (1966)
29
ILO R132 Tenants and Share-croppers Recommendation, 1968 (No. 132) Recommendation
concerning the Improvement of Conditions of Life and Work of Tenants, Share-croppers and
Similar Categories of Agricultural Workers. Adoption: Geneva, 52nd ILC session (25 Jun 1968)
http://www.ilo.org/dyn/normlex/en/f?p¼NORMLEXPUB:12100:0::NO::P12100_INSTRU
MENT_ID:312470. Accessed 19 August 2016.
30
That occurred in Japan, Republic of Korea, and Taiwan Republic of China. Historically this kind
of reform proved to be successful: indeed, the knowledge and the experience allowed the tenants to
profit of the improved situations. Cox et al. (2003), p. 14.
31
The many state-led reforms that were carried on during this period had as a main aim the raising
of productivity of underutilized land, which was often held by few large landowners, to foster the
economic growth of the country and enhance social equity. Those reforms brought to a substantive
progress in the redistribution of property rights, and factors of their success related closely to the
strength of the government’s political commitment, and the level of assistance provided after the
tenure change, and the institutional and legal set-up. Cox et al. (2003), p. 14.
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262 M. Brunori
cooperatives and should couple those actions with a more general intervention on
social development and technical and financial assistance. The reform of tenure
and, in general, the land reform should aim at making the interest of small and
medium-sized farmers, tenants, and landless workers, which are considered the
leverage for rural development. The conception that lays at the foundation of those
recommendations is that land is a productive resource that governments should
make available for its agricultural use in a way to allow increased occupation and
fair working conditions. The recipient of those actions therefore is the active rural
population, the improvement of whose conditions is deemed to consequently
benefit the entire rural population.
2.2 The ’70s
During the second half of the ’60s and the ’70s, the agricultural sector and land
reforms remained high in states’ agenda, but, in contrast with the past trend in
which agriculture and land reform were seen by the General Assembly worth of ad
hoc resolutions, this period lacks a regular mention of the issue in its annual
sessions. Notwithstanding this observation, three documents of great importance
are endorsed within the years here considered: the 1969 Declaration on Social
Progress and Development, the 1974 Universal Declaration on the Elimination of
Hunger and Malnutrition, and the 1979 Declaration of Principles and the
Programme of Action of the World Conference on Agrarian Reform and Rural
Development.32
The Declaration on Social Progress and Development, which Alston defines as
“probably the best example of a multilateral instrument that achieves a balanced
and integrated approach to the issues of human rights and development,”33 has been
the first UN document to open the floor for a joined reading of development and
human rights.34 In the Declaration, the issue of land is given great attention, and it is
spelled out both in the first section, which lists the Principles, and in the third part of
the Declaration, which puts forward the means and methods to realize the objec-
tives of social progress and development.
32
UN General Assembly Resolution 2542 Declaration on Social Progress and Development
A/RES/2542 (11 December 1969) http://www.ohchr.org/Documents/ProfessionalInterest/pro
gress.pdf. Accessed 19 August 2016. Adopted by 119 votes to none, with 2 abstentions; Universal
Declaration on the Eradication of Hunger and Malnutrition, adopted on 16 November 1974 by the
World Food Conference convened under UN General Assembly Resolution 3180 (XXVIII) of
17 December 1973, endorsed by UN General Assembly Resolution 3348 (XXIX) of 17 December
1974. www.ohchr.org/EN/ProfessionalInterest/Pages/EradicationOfHungerAndMalnutrition.
aspx. Accessed 19 August 2016; FAO (1981) The Peasants’ Charter. Declaration of principles
and Programme of action of the World Conference on Agrarian Reform and Rural Development.
FAO, Rome, http://www.fao.org/docrep/U8719E/U8719E00.htm. Accessed 19 August 2016.
33
Alston (1994), p. 143.
34
Udombana (2000), p. 782.
What the Declaration says about land ownership is that the patterns of property
rights on land should be in such a way as to ensure that everyone is entitled to own
land without any sort of discrimination, to ensure that those forms of ownership do
not lead to exploitative situations, and that those forms of ownership of land enable
the pursuit of genuine equality among people.35 So interpreted, the statement seems
to conceive the ownership of land as instrumental—in line with the concept of
social function of property—to the realization of social progress and development
and poses three state obligations: the duty to recognize the equal right to own
property for all without discrimination, the duty to protect people (“man”) from any
kind of exploitation that may occur by consequence of an inadequate system of
ownership of land, and the duty to design and implement systems (“establish form”)
of ownership of land that create conditions leading to substantial equality among
people. The instrumentality of land to achieve higher goals is further stressed in
Article 17 (d), which calls for measures for appropriate supervision of the utiliza-
tion of land in the interest of society, and in Article 18 (b), affirming that states
should carry on land reforms in which “the ownership and use of land will be made
to serve best the objectives of social justice and economic development.”36
The Declaration addresses both formal equality, by promoting forms of owner-
ship that “ensure equal rights to property for all,” and substantial equality, by
suggesting the creation of “conditions leading to genuine equality among people.”
Contrary to the ’50s–’60s resolutions, which expressly calls for a redistribution of
land—or a wide distribution of the ownership of land among rural population—as a
substantial factor of equitable access to land, the Declaration adopts a teleological
approach, leaving undefined which patterns of land ownership that are more likely
to create conditions leading to substantial equality among people.37 This formula-
tion is due to a disagreement between the negotiators on what constitutes the
priority, being for the socialist block the distribution of land to those who work it,
35
In Article 6 of the Declaration it is stated that “Social progress and development require the
participation of all members of society in productive and socially useful labour and the establish-
ment, in conformity with human rights and fundamental freedoms and with the principles of
justice and the social function of property, of forms of ownership of land and of the means of
production which preclude any kind of exploitation of man, ensure equal rights to property for all
and create conditions leading to genuine equality among people.” UN General Assembly Resolu-
tion 2542 Declaration on Social Progress and Development A/RES/2542 (11 December 1969).
36
UN General Assembly Resolution 2542 Declaration on Social Progress and Development
A/RES/2542 (11 December 1969).
37
In the same approach moves the Article 11(a) of the International Covenant of Economic Social
and Cultural Rights, adopted by the General Assembly in 1966, 3 years before the endorsement of
the Declaration on Social Progress and Development, by saying that States Parties “shall take
necessary measures to improve methods of production, conservation and distribution of food [. . .]
by developing or reforming agrarian systems in such a way as to achieve the most efficient
development and utilization of natural resources.” UN General Assembly, International Covenant
on Economic, Social and Cultural Rights (ICESCR), 16 December 1966, United Nations, Treaty
Series, vol. 993, p. 3, available at: http://www.refworld.org/docid/3ae6b36c0.html. Accessed
24 February 2016.
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264 M. Brunori
opposed by the position of some countries (United Kingdom, Argentina,

New Zealand, among others), which stressed on the prominence of proper and
efficient land use rather than land tenure systems.38 The latter position is more in
line with the content of Article 11 of the International Covenant on Economic,
Social and Cultural Rights—endorsed 3 years before the Declaration—which says
that the States Parties shall take the measures to achieve the “most efficient
development and utilization of natural resources.”39
The second document is the Universal Declaration on the Elimination of Hunger
and Malnutrition, adopted at the 1974 World Food Conference and endorsed by
Resolution n 3348 XXIX, which stresses on the need for structural changes in order
to remove the obstacles of food production and to provide proper incentives for
agricultural producers. For the attainment of these objectives, it notes the need for
“effective measures of socio-economic transformation by [. . .] the re-organization
of rural structures, such as the reform of the conditions of ownership.” This
formulation is in line with Article 18 of the 1969 Declaration, by calling for a
reform in which the ownership and use of land will be made to serve best the
objectives of social justice and economic development, without entering in the
merit of what constitutes the best ownership arrangement. Furthermore, the two
documents adopt the terms “condition of ownership” and “forms of ownership,”
whereas in the previous period the usual terms used were “conditions of tenure,”
“systems of tenure,” “security of tenure.”
In 1979, the World Conference on Agrarian Reform and Rural Development
adopted the Declaration of Principles and the Programme of Action, also known as
the Peasants’ Charter.40 In its Resolution n 14 of the 34th session, the General
Assembly endorsed the two documents and urged the governments of all Member
States to take appropriate measures, on a priority basis, in order to implement the
conclusions and recommendations set forth in the Declaration of Principles and in
the Programme of Action.41 In this resolution, the General Assembly expressed its
conviction that “the sustained improvement of rural areas in each country [. . .]
requires fuller and more equitable access to land, water and other natural renewable
resources.” The same concept is repeated with almost the same words in a resolu-
tion of the following year containing the International Development Strategy for the
Third United Nations Development Decade.42
38
Official records of the United Nations General Assembly, twenty-fourth session, Third Com-
mittee, 1688th meeting. Monday, 3 November 1969, at 11.5 a.m., New York. http://www.un.org/
documents/ga/res/34/. Accessed 5 September 2016.
39
ICESCR, art. 11 para 2 a.
40
FAO (1981).
41
UN General Assembly Resolution 34/14 World Conference on Agrarian Reform and Rural
Development A/RES/34/14 (9 November 1979) http://www.un.org/documents/ga/res/34/
a34res14.pdf. Accessed 19 August 2016.
42
The Resolution affirms that “in accordance with their national plans, [developing countries] will
give priority to programmes for adaptation of institutional frameworks so as to allow wider and
more equitable access to land and water resources, as well as effective management of forests,
In the Peasants’ Charter, the promotion of equitable access to land, water, and
other natural resources entails a number of actions. It implies an equitable distri-
bution of land among rural population, to be operated by prioritizing the
reallocation of land to tenants and putting particular attention to the most vulnerable
groups.43 But it also requires fair conditions of tenure for tenants and sharecropper,
which consist in the record of tenure rights and the introduction of rent ceilings; the
enforcement of the security of tenure, which is realized also by means of access to
credit and services; and, finally, the promotion of tenants’ organizations and rural
labor legislation.44 In case of customary tenure systems, promoting access to land
means to arrest trends toward unequal privatization of rights and absentee owner-
ship and protect the rights of small cultivators and nomadic populations; preserve,
adapt, or create a system of broad-based community control and management of
land and other natural resources; ensure the efficient utilization of pastoral
resources, ensuring that the benefits accrue to pastoral people.45 In this context,
the word “ownership” is not used, and this could be probably explained by the fact
that the Charter puts emphasis on state-owned farms and cooperatives.
The formulation of those sentences can appear quite similar to those of the
resolutions on land reform; nevertheless, the choice of different vocabularies
suggests a new sensitivity to other factors characterizing the rural socioeconomic
environment. First of all, the Universal Declaration on the Elimination of Hunger
and Malnutrition considers as recipient of the policies only tenants, and small and
medium-sized farmers, whereas the Peasants’ Charter addresses a wider range of
rural dwellers. The Charter makes reference to tenants, sharecroppers, landless
workers, and, in general, the most vulnerable groups: women, communities, pasto-
rals, fishermen, and nomadic populations. In addressing the conditions of all social
categories of the rural population, by explicitly listing them and giving them
particular attention through special recommendations, the Charter marks a step
forward with respect to the recognition of the variety of the stakeholders and the
multiplicity of interests and needs, in the rural context. Indeed, neither the Decla-
ration on Social Progress and Development nor the Universal Declaration on the
Elimination of Hunger and Malnutrition shows sensitivity on this point, the first
adopting—in line with the general approach of the document—a teleological
approach and identifying the stakeholders through the term “people” or “society,”
and the second making reference to “agricultural producers,” an expression that
allows a wide reading of the subjects but overlooks the diversity of situations that
this expression can encompass.
pastures, water and other natural resources in their national interests.” UN General Assembly
Resolution 35/56 International Development Strategy for the Third United Nations Development
Decade A/RES/35/56 (5 December 1980) http://www.un.org/documents/ga/res/35/a35r56e.pdf.
Accessed 19 August 2016.
43
FAO (1981), pp. 3–6.
44
FAO (1981), pp. 9 et seqq.
45
FAO (1981), p. 11.
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266 M. Brunori
The second difference between the previous and the new blocks of resolutions
lies in the individuation of the resource the access to which needs to be guaranteed:
whereas in the first group of resolutions the resource worth of attention was mainly
land (all the other-natural or economic-resources being merely instrumental to the
main activity, which was land cultivation) here the protection of the access enlarges
its scope, encompassing other natural resources. In this way, natural resources
acquire a more complex role, moving from being only a productive factor, neces-
sary for the concretization of the economic activity of agricultural production, to
resources essential also for the satisfaction of more fundamental needs.46
In 1984, Roger Plant, operating a similar analysis on UNGA resolutions, con-
cludes that several UN declarations over the past 15 years have reaffirmed that
governments have the “duty to reform inequitable and inefficient agrarian struc-
tures” and that landless workers and tenant farmers have a corresponding right to
benefit from these redistributive agrarian reforms.47 Indeed, this decade witnesses
an unprecedented activity of standard-making on the land access and tenure ques-
tions: the Declaration on Social Progress and Development poses—with the par-
ticular solemnity given by the fact of being named “declaration”—the normative
principle of formal and substantial equity of land ownership; the Universal Decla-
ration on the Elimination of Hunger and Malnutrition affirms the crucial function of
land for the realization of world food security; the Peasants’ Charter spells out with
great detail what it means to promote equity and food security in the rural context.
As a consequence, it is argued that, despite the ups and downs of the land issues in
the international agenda, the achievements of these years constitute a relevant
benchmark that cannot be overlooked when trying to reconstruct the international
consent on the regulation of land matters.
2.3 The End of the Nineteenth Century
After the achievements just described, the General Assembly, for the long period
encompassing the ’80s until the mid ’90s, remains silent on the issue of access to
land and land tenure.48 During all the ’80s, there is a clear dismissal of the question
of land access in favor of the promotion of measures to raise productivity and
46
According to Plant, “while the language in these documents is cautious – as might be expected
from a declaration approved by almost every government in the world – the overall trends in the
conclusions are clear enough.” Plant (1984), pp. 190–191.
47
Plant (1984), p. 191.
48
In 1975 the World Bank released a “Land Reform Policy Paper,” whose four key messages were
the importance of owner-operated family farms, secure property rights to land, a policy and
regulatory environment that promotes transfers to more efficient land uses, and a more egalitarian
asset distribution. As a consequence, the WB policy recommended that communal tenure systems
be abandoned in favor of freehold titles and the subdivision of commons. Binswaner and Deininger
(1999), p. 248.
expand the use of technology in agriculture.49 Several reasons lie behind this “agro-
scepticism”: firstly, the agrarian reforms of the ’70s did not bring the expected
results, and the big interventions led by the World Bank in the agricultural sector
were strongly criticized because of adverse social and environmental impacts.
Secondly, the new Washington Consensus, coupled with the severe debt crisis of
the less-developed countries, pushed for the privatization of many services previ-
ously managed by the state.50
This dismissal of the public intervention in the first sector was often driven by
the structural adjustment programs. As a consequence, market-based allocation of
land rights substituted state-led land reforms. After the end of the Cold War,
ex-socialist countries operated a decollectivization and privatization of their land
tenure arrangements. Cooperatives and collectives were dismantled and land allo-
cated through private rights: full private property in some countries of Latin
America or increasingly secure private use rights in countries that opted for
maintaining the state ownership of land.51 In this period, the only indirect reference
of the General Assembly to the issue of land is the constant recall, until 1988, of the
outcome of the World Conference on Agrarian Reform and Rural Development at
the beginning of the resolutions titled “Situation of food and Agriculture in Africa,”
“Food Problems” or “Food and Agricultural Problems.”52
In the ’90s, a discrepancy can be remarked between the references to land within
the General Assembly and the evolutions of the topic on the occasion of some very
important Intergovernmental Conferences that took place in those years. On the one
hand, within the General Assembly Resolution, we just find two synthetic refer-
ences to land in the International Development Strategy for the Fourth UN
49
Atkins claims that the dismissal of land reform from the development agenda of the 80’s is due to
a misconception of land reform itself, and affirms that the features of land ownership and size are a
result of power and are directly connected with the power structure of a given context. To properly
address the issue, a land reform should consider both those features (land ownership and size of
holdings) and the power dynamics. Atkins (1988), pp. 935–946.
50
Lilleør and Lund-Sørensen (2013), p. 2. See also Shaw (2009).
51
Cox et al. (2003), p. 15.
52
UN General Assembly Resolution 36/186 Situation of food and agriculture in Africa A/RES/36/
186 (17 December 1981) http://research.un.org/en/docs/ga/quick/regular/36. Accessed 19 August
2016; UN General Assembly Resolution 37/245 Situation of food and agriculture in Africa
A/RES/37/245 (21 December 1982) http://research.un.org/en/docs/ga/quick/regular/37. Accessed
19 August 2016; UN General Assembly Resolution 37/245 Food Problems A/RES/37/247
(21 December 1982) http://research.un.org/en/docs/ga/quick/regular/37. Accessed 19 August
2016; UN General Assembly Resolution 38/158 Food Problems A/RES/38/158 (21 December
1982) http://research.un.org/en/docs/ga/quick/regular/38. Accessed 19 August 2016; UN General
Assembly Resolution 38/159 Critical situation of food and agriculture in Africa A/RES/38/159
2016; UN General Assembly Resolution 39/166 Food and agricultural problems A/RES/39/166
(8 December 1981) http://research.un.org/en/docs/ga/quick/regular/41. Accessed 19 August 2016.
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268 M. Brunori
Development Decade of 1990, which calls for “economic units of land and secure
systems of tenure,” and in the Agenda for Development of 1997, which affirms that,
for solving the problems in developing countries, it is also important to promote
“secure land tenure for farmers.”53 On the other hand, outside the General Assem-
bly, land issues reacquire a wave of interest in the international development
policies. Indeed, meaningful references to land are found in Agenda 2154; in the
Programme of Action of the International Conference on Population and Develop-
ment (Cairo Conference) adopted on September 13, 199455; in the Copenhagen
Declaration on Social Development and in the Programme of Action of the World
Summit for Social Development adopted on March 12, 199556; and in the outcome
of the World Food Summit, held in Rome from November 13 to 17, 1996.57 Despite
the fact that the General Assembly does not mention those achievements in the
body of its resolutions, the official endorsement of those nonbinding documents
confers great relevance to their content.
In those documents, together with the reaffirmation of the necessity of improv-
ing access to land, other natural resources and other assets such as inputs, technol-
ogy, and credit, the importance of the recognition of traditional rights is affirmed,
and besides landless tenants and small farmers, a much wider set of rural subjects
are individuated as stakeholders, such as laborers, other small producers, fisherfolk,
community-based and workers’ cooperatives, pastoralists, fishery workers,
nomadic and indigenous peoples, and migrants. Again, much emphasis is put on
the cooperation with local communities and category associations and the need for
an increased control over resources by local communities, as well as the recognition
of traditional practices as an essential resource to overcome rural poverty and
enhance development. The recognition of the special role played by, and the
specific needs of local communities, was already made in the Peasants’ Charter;
53
UN General Assembly Resolution 45/199 Development Strategy for the Fourth UN Develop-
ment Decade A/RES/45/199 (21 December 1990) http://research.un.org/en/docs/ga/quick/regular/
45. Accessed 21 August 2016; UN General Assembly Resolution 51/240 Agenda for Development
A/RES/51/240 (20 June 1997) http://research.un.org/en/docs/ga/quick/regular/51. Accessed
21 August 2016.
54
Agenda 21 Programme of Action for Sustainable Development. UN GAOR, 46th Sess., Agenda
Item 21, UN Doc A/Conf.151/26 (1992). https://sustainabledevelopment.un.org/index.php?
page¼view&nr¼23&type¼400&menu¼35. Accessed 19 August 2016. See on this point FAO
(2002b), para II.
55
Programme of Action of the International Conference on Population and Development, Annex,
at 5, U.N. Doc. A/CONF.171/13 (18 October 1994) (Cairo Conference 2015). https://www.unfpa.
org/sites/default/files/event-pdf/PoA_en.pdf. Accessed 19 August 2016.
56
Copenhagen Declaration on Social Development and in the Programme of Action of the World
Summit for Social Development A/CONF.166/9 (14 March 1995). http://www.un.org/documents/
ga/conf166/aconf166-9.htm. Accessed 19 August 2016.
57
Also the outcome of the World Food Summit, held in Rome from 13 to 17 November 1996,
dedicated a part of the final document to land, but it was not endorsed by the General Assembly,
rather “welcomed” by it in Resolution n 171 of 1997. UN General Assembly Resolution 51/171
Food and sustainable agricultural development A/RES/51/171 (16 December 1997). http://
research.un.org/en/docs/ga/quick/regular/51. Accessed 19 August 2016.
Table 1 Programmes of action of the ’90s

Agenda 21 of the United Nations Programme of Action of the Programme of Action of the
Conference on Environment and International Conference on World Summit for Social
Development Population and Development Development
Enabling the poor to achieve Action: 9.6 Governments 32. Rural poverty should be
sustainable livelihoods wishing to create alternatives addressed by:
3.8, f. Consider strengthening to out-migration from rural (a) Expanding and improv-
and/or developing legal frame- areas should establish the ing land ownership through
works for [. . .], access to land preconditions for develop- such measures as land
resources and land ownership— ment in rural areas, actively reform and improving the
in particular, for women—and support access to ownership security of land tenure, and
for the protection of tenants; or use of land and access to ensuring the equal rights of
[. . .] water resources, especially women and men in this
o. Consider making available for family units, facilitate the respect, [. . .]
[. . .] improved access to land for establishment of [. . .] coop- promoting fair land rents,
the landless poor so that they can eratives and other grass-roots making land transfers more
acquire the means of production organizations that give peo- efficient and fair, and adju-
and reliable ple greater control over dicating land disputes;
access to natural resources resources and improve their (f) Protecting, within the
7.30 f. Establish appropriate livelihoods. national context, the tradi-
forms of land tenure that provide Particular attention is needed tional rights to land and
security of tenure for all land- to ensure that these opportu- other resources of pastoral-
users, especially indigenous nities are also made available ists, fishery workers and
people, women, local communi- to migrants’ families nomadic and indigenous
ties, the low-income urban remaining in the areas of people, [. . .]
dwellers and the rural poor origin.
nevertheless, the employment of this expression in this new wave of documents

should be read with the particular acknowledgment that in the same year of the
adoption of Agenda 21, the text of the Convention on Biological Diversity was
approved. The latter identifies local communities as a social group worth of ad hoc
recognition for the fundamental role played in nature conservation and the sustain-
able use of life on earth.58
The three documents, as Table 1 shows, put emphasis on access to land owner-
ship as a means of overcoming rural poverty.59 Parallel to land ownership, though,
the documents recognize the importance of access to natural resources that can be
realized by means other than the ownership of land (“access to land resources,”60
“use of land and access to water resources,”61 “protection of traditional rights to
land and other resources”62). Land tenure systems should guarantee the security of
access and use rights for all who bear a stake. Access to land resources is defined by
Agenda 21 as “an essential component of sustainable low-impact lifestyles. Land
58
Bessa (2015), p. 332. Convention on biological diversity. Rio de Janeiro, 5 June 1992.
59
Agenda 21 and the Programme of Action of the World Summit for Social Development insert the
land question in the framework of overcoming poverty or rural poverty.
60
Agenda 21, para 3.8.f.
61
Programme of Action of the International Conference on Population and Development, Action
9.6.
62
Programme of Action of the World Summit for Social Development, para 32.f.
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270 M. Brunori
resources are the basis for (human) living systems and provide soil, energy, water
and the opportunity for all human activity.”63
In the state practice of those years, the developments brought about in the
international arena were translated in interventions that involved new patterns of
land reforms. In the 1996 World Bank action plan, “From vision to action in the
rural sector,” the Bank proposed to address long-ignored issues, such as land
reform, gender, and food consumption policy issues, and that those old issues
should be addressed in a new way. The World Bank policy coordinates in those
years were based on the assumptions that some communal tenure arrangements can
increase tenure security and provide a basis for land transaction; that several pre-
conditions must be satisfied, as land titling operated on area-bases, and measures of
rural development; and that land rental markets are important means for providing
the poor with access to land.64
The land reform programs carried out during this period put emphasis on the
protection of the tenure rights of the more vulnerable categories, such as women
and nomadic people; recognize the importance of local communities; and promote
decentralization of land governance.65 The security of tenure rights, as a conse-
quence of the successful work of Hernardo De Soto, begins to be equated with the
registration and titling of property rights. This strategy is drawn on three assump-
tions: firstly, land titling increases the incentive to clear and cultivate land; sec-
ondly, when properly registered, land can be used as collateral to access credit; and,
lastly, written records improve the transferability of property.66 The approach that
favors the ownership of land has raised many criticisms by being accused to
oversimplify or disregard the many patterns of use and access rights of the custom-
ary tenure systems that characterize the rural areas in developing countries.67
Translating this vision on the ground, there have been adopted land reforms that
endeavor to transform the customary tenure of local communities in individual or
collective ownership rights, with the consequence that the most marginalized
members of a community have lost access to natural resources on which they
depended for their basic needs.68
63
Agenda 21, para 7.27.
64
Shaw (2009), pp. 90 et seqq.
65
Cox et al. (2003), p. 16.
66
Binswaner and Deininger (1999), p. 248.
67
UN Document A/65/281 Item 69 (b) of the provisional agenda. Promotion and protection of
human rights: human rights questions including alternative approaches for improving the effective
enjoyment of human rights and fundamental freedoms. Right to Food (11 August 2010), p. 10.
https://documents-dds-ny.un.org/doc/UNDOC/GEN/N10/482/30/PDF/N1048230.pdf?
OpenElement. Accessed 19 August 2016.
68
See e.g. the case of Land Reform in Honduras promoted by the World Bank, Brunori (2013),
pp. 333 et seqq.
2.4 The New Millennium
The new millennium is characterized by a blossoming of initiatives that encompass

the issue of land access and the security of tenure rights. In the ambit of the Third
Committee’s activities, constant references to access to land are made in the
resolutions that promote the advancement of human rights, such as the right to
adequate food, the rights of indigenous peoples, the right to nondiscrimination on
the basis of sex, the right to adequate housing. A second important source of
guidelines pertaining to land is found in those resolutions promoting sustainable
development and alternative development in countries affected by the problem of
illicit crop cultivation. In the sphere of interest of the Second Committee of the
General Assembly, we find resolutions dealing with agricultural development and
food security.
The first decade of the twenty-first century witnessed the raise of attention in the
interpretation and promotion of the right to adequate food.69 Since 2004, the
General Assembly has adopted, at each annual session, a resolution titled Right to
Food. Until 2009, those resolutions were making reference to land only with regard
to women’s situation by ensuring that women have equal access to resources,
including income, land, and water, to enable them to feed themselves. From 2009
and for the following 5 years, besides the reference to women’s equal access to land
and resources, it has been recognized that “access to land, water, seeds and other
natural resources is an increasing challenge for poor producers.”70
Despite those resolutions lacking an explicit mention to the need to increase
equitable access to land, they emphasize the fact that lack of or insecure access to
natural resources hampers the realization of the right to food; therefore, states
should take adequate measures, such as land and agrarian reform, to address this
situation. The synthetic formulation of the provision allows nevertheless to
69
In 1999 the Committee on Economic, Social and Cultural Rights adopted the General Comment
n 12 on the Right to adequate food, which explicates the link between the right to food and the
access to land and natural resources. UN Committee on Economic, Social and Cultural Rights
(CESCR), General Comment No. 12: The Right to Adequate Food (Art. 11 of the Covenant)
(12 May 1999) available at: http://www.refworld.org/docid/4538838c11.html. Accessed
19 August 2016.
70
The Resolutions continue with saying that “sustainable and gender-sensitive agricultural policies
are important tools for promoting land and agrarian reform, rural credit and insurance, technical
assistance and other associated measures to achieve food security and rural development; and that
support by States for small farmers, fishing communities and local enterprises is a key element for
food security and the provision of the right to food.” UN General Assembly Resolution 63/187
Right to food A/RES/63/187 (18 December 2008) http://research.un.org/en/docs/ga/quick/regular/
63. Accessed 19 August 2016 (see also Resolutions A/RES/64/159, A/RES/65/220, A/RES/66/
158, A/RES/67/174). The Resolutions continue with saying that “sustainable and gender-sensitive
agricultural policies are important tools for promoting land and agrarian reform, rural credit and
insurance, technical assistance and other associated measures to achieve food security and rural
development; and that support by States for small farmers, fishing communities and local enter-
prises is a key element for food security and the provision of the right to food.”
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272 M. Brunori
appreciate the particular need that the most vulnerable people, such as women,
indigenous people, and poor producers, bear with regard to access to natural
resources, therefore recovering a vision consistent with the outcomes of the ’90s
UN Conferences on development. In the body of the resolutions on the right to
adequate food, the General Assembly makes reference also to a number of
nonbinding instruments adopted in those years by the Food and Agriculture Orga-
nization, between 2004 and 2013.71 Each of those quite long documents makes
substantive reference to access to land and security of tenure, further interpreting
and elaborating on the connection between natural resources and the realization of
fundamental rights for rural population in the context of food security, but this
reference is made without recalling the documents’ contents or officially
endorsing it.
A great achievement in the realm of human rights is the adoption in 2007 of the
United Nations Declaration on the Rights of Indigenous Peoples, by the General
Assembly, through Resolution n 65/195. This achievement is of fundamental
relevance for the elaboration of agricultural policies and rural development and,
more in general, for the conceptualization of the international protection of land
rights.72 The Declaration, after a long process of negotiation, reaches to include the
indigenous peoples’ right to their traditional lands and territories in the human
rights realm.73 Article 26 of the Declaration affirms the indigenous peoples’ right to
the lands, territories, and resources that they have traditionally owned, occupied, or
otherwise used or acquired; it recognizes that they have the right to own, use,
develop, and control the lands, territories, and resources that they possess by reason
of traditional ownership or other traditional occupation or use, as well as those that
they have otherwise acquired; it declares that States shall give legal recognition and
protection to these lands, territories, and resources and that such recognition shall
be conducted with due respect to the customs, traditions, and land tenure systems of
71
Resolution n 60 of 2006 welcomes the adoption by the Council of the Food and Agriculture
Organization of the United Nations of the Voluntary Guidelines to Support the Progressive
Realization of the Right to Adequate Food in the Context of National Food Security; UN General
Assembly Resolution 60/165 The right to food A/RES/60/165 (2 March 2006) http://research.un.
org/en/docs/ga/quick/regular/60. Accessed 19 August 2016; Resolution n 61 of 2006 takes note of
the final Declaration adopted at the International Conference on Agrarian Reform and Rural
Development of the Food and Agriculture Organization of the United Nations in Porto Alegre,
Brazil, on 10 March 2006 (C/2006/REP). UN General Assembly Resolution 61/164 The right to
food A/RES/61/164 (19 December 2006) http://research.un.org/en/docs/ga/quick/regular/61.
Accessed 19 August 2016; Resolution n 174 of 2013 Recalling the endorsement of the Voluntary
Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context
of National Food Security by the Committee on World Food Security at its 38th session, held
on 11 May 2012, and by the Council of the Food and Agriculture Organization of the United
Nations at its 144th session. UN General Assembly Resolution 67/174 The right to food A/RES/67/
174 (20 December 2012) http://research.un.org/en/docs/ga/quick/regular/67. Accessed
19 August 2016.
72
Wiessner (2011), pp. 138 et seqq.; Gómez Isa (2016), pp. 196–197.
73
Despite without the unanimous consent of the General Assembly.
the indigenous peoples concerned. Outside Article 26, references to indigenous

lands are found throughout all the document and affirm the principle of free, prior,
and informed consent of concerned indigenous peoples whenever a decision over
their lands is to be taken.74
The last recent set of resolutions that mention land access and security of tenure
in the context of agriculture and rural development are four resolutions titled
“Agriculture development and food security,” adopted between the 65th and the
68th annual sessions of the UN General Assembly. All the four resolutions mention
access to land but each one using a slightly different vocabulary. The General
Assembly, in the first resolution, puts attention on the need to “expanded access of
smallholder farmers to [. . .] land [. . .], in order to reach the poverty and hunger
targets of the Millennium Development Goals”75; in the second, it stresses the need
to strengthen the capacity of smallholders and women farmers “as a strategy to
enhance agriculture development and food security by promoting equitable access
to land, water [. . .]”76; and, in the third and the fourth, it encompasses the necessity
of enhancing “access by agricultural producers, in particular small producers,
women, indigenous peoples and people living in vulnerable situations, to [. . .]
secure land tenure, [. . .]” to better address the needs of rural communities.77
As it can be observed by the comparison of these sentences, despite the fact that
the question of access to land is recognized and affirmed in all the four documents,
there is no uniformity in the formulation of the principle, given that Resolution
n 65/178 refers to an “expanded access to land,” Resolution n 66/220 to “equitable
access to land,” and Resolutions n 67/228 and n 68/233 to “access to secure land
tenure,” the latter therefore changing the very object of the access, not being the
natural resource itself but the rights pertaining to it. Consistency is lacking also with
regard to the target subjects, being in the first “smallholder farmer,” then “small-
holder and women farmers,” and in the last two “agricultural producers, in
74
UN General Assembly Resolution 61/295 United Nations Declaration on the Rights of Indige-
nous Peoples A/RES/61/295 (2 October 2007) http://www.refworld.org/docid/471355a82.html.
Accessed 13 August 2016.
75
UN General Assembly Resolution 65/178 Agriculture development and food security A/RES/65/
19 August 2016.
76
19 August 2016.
77
178 (20 December 2010) http://research.un.org/en/docs/ga/quick/regular/65. Accessed 19 August
2016; UN General Assembly Resolution 67/228 Agriculture development and food security
A/RES/67/228 (22 December 2011) http://research.un.org/en/docs/ga/quick/regular/66. Accessed
19 August 2016; UN General Assembly Resolution 67/228 Agriculture development and food
security A/RES/67/228 (21 December 2012) http://research.un.org/en/docs/ga/quick/regular/67.
Accessed 19 August 2016; UN General Assembly Resolution 68/233 Agriculture development,
food security and nutrition A/RES/68/233 (20 December 2013) http://research.un.org/en/docs/ga/
quick/regular/68. Accessed 19 August 2016.
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274 M. Brunori
particular small producers, women, indigenous peoples and people living in vul-
nerable situations.”78
Another very recent contribution to the international land discourse is found in
the United Nations Guiding Principles on Alternative Development, which consti-
tutes the outcome of the high-level International Conference on Alternative Devel-
opment, held in Lima in 2012 and adopted by the General Assembly in its
Resolution n 196/67. In the document, the emphasis is put on the recognition and
enforcement of land rights and the necessity to take existing land rights into account
while designing, implementing, monitoring, and evaluating alternative develop-
ment programs.79 With regard to the right holders, the document explicitly recog-
nizes the particular situation of indigenous peoples and local communities by
recalling to take into account their rights, but the scope of the provision is con-
cretely limited by the addition of the need to consider those rights in accordance
with the national legal framework. By adding this sentence, the Declaration may
appear in conflict with the Declaration of indigenous peoples’ rights. From the
viewpoint of the content of the right then, the text is unclear. It is written that the
object of the recognition and enforcement should be “property rights, including
access to land.”80 Probably the intention of the negotiations was to include all forms
of tenure rights, encompassing the access rights under customary tenure, but the
language at least is inconsistent with the usual use of “access to land,” which is
normally employed to generally indicate the measures through which individuals
can obtain land use or land rights (such as in the recent set of resolutions titled
“Agriculture development and food security”) or, more broadly, all measures that
allow people to create and maintain their relationship with land (such as in the
Peasants’ Charter).81
78
In 2009, during the 64th General Assembly annual session, it can be remarked a quite clear
division between developing countries, declaring their commitment toward attracting foreign
investments in agriculture by converting fallow lands, developed countries, rather looking forward
to the UN initiatives on land guideline, and Bolivia and Venezuela that stress for small-agriculture,
traditional knowledge and peasants control of land. General Assembly Official Records, 66th
Plenary meeting, Monday, 21 December, 3 p.m. A/64/PV.66 http://www.un.org/en/ga/search/
view_doc.asp?symbol¼A/64/PV.66. Accessed 19 August 2016. In the 67th and 68th annual
sessions’ resolutions there is wide emphasis in the welcoming of the VGGTs, and in the call for
their diffusion and implementation. General Assembly Official Records, 71st Plenary meeting
Friday, 20 December 2013, 10 a.m. A/68/PV.71 http://www.un.org/en/ga/search/view_doc.asp?
symbol¼A/68/PV.71. Accessed 19 August 2016.
79
It appears that the level of protection encompassed in this document is not fully consistent, passing
from the recognition and enforcement to the weaker “take into account.” UN General Assembly
Resolution 67/196 Guiding Principles on Alternative Development A/RES/67/196 (21 December
2012) http://research.un.org/en/docs/ga/quick/regular/67. Accessed 19 August 2016.
80
The draft Guidelines adopted for the International Conference on Alternative Development
(ICAD I) held in Thailand in 2011, and in the background Document of the ICAD II which has
recently taken place in November 2015 in Thailand, has dedicated an important part of the agenda
on access to land, highlighting the link between unsecure land tenure and illicit crops cultivation,
and the importance of more secure access to land for the alternative development. http://www.
icad2.com/about_ICAD2.html. Accessed 19 August 2016.
81
For a detailed analysis of the meanings of “access to land,” see Sect. 3.1.
2.5 Sustainable Development
The Sustainable Development agenda substantially enriched and developed the

discourses around land access. Three documents have been endorsed by the General
Assembly since the beginning of the twenty-first century: the Johannesburg Dec-
laration and Plan of Implementation, outcome of the World Summit on Sustainable
Development; the United Nations Conference on Sustainable Development,
Rioþ20 outcome, “The future we want”; and Agenda 2030.82
For what concerns the promotion of access to land, the three documents have a
rather different approach. The first document links the increased access to land and
other resources with the empowerment of people living in poverty. The second does
not mention access to land and only promotes the access to secure land tenure,
therefore mirroring aforementioned Resolutions n 66/220 and n 67/228. The third
includes a secure and equal access to land among the measures to double the
agricultural productivity and incomes of small-scale food producers. From the
comparison of those texts then, it emerges that “access to land” can be a value in
itself since it enables the empowerment of vulnerable peoples, it can be an instru-
ment to reach quantitative target like increasing productivity and income, or it can
be no worth of explicit mention at all (but indirect reference to the value of access to
land is given through the promotion of the Voluntary Guidelines on the Governance
on Tenure).
The way the three documents address land tenure, again, is rather different. The
2002 document stresses the importance of recognition, protection, and enforcement
of land tenure systems, including the indigenous and communal customary tenure
of land and putting emphasis on use rights. The Future We Want, instead of
incorporating those provisions in the text, makes reference to the UN Committee
on World Food Security Voluntary Guidelines on the Responsible Governance of
Tenure of Land, Fisheries and Forests in the Context of National Food Security
(VGGTs) by encouraging countries to give due consideration to implementing
them. The VGGTs constitute the most comprehensive guidelines for land tenure,
and their core message is to “recognize and respect all legitimate tenure right
holders and their rights.”83 The VGGTs adopt a human-rights-based approach
and represent the first internationally negotiated document that affirms that “land,
82
UN General Assembly Resolution 57/253 World Summit on Sustainable Development A/RES/
57/253 (20 December 2002) http://research.un.org/en/docs/ga/quick/regular/57. Accessed
19 August 2016; UN General Assembly Resolution 66/288 The future we want A/RES/66/288
(27 July 2012) http://research.un.org/en/docs/ga/quick/regular/66. Accessed 19 August 2016; UN
General Assembly Resolution 70/1 Transforming our world: the 2030 Agenda for Sustainable
Development A/RES/70/1 (25 September 2002) http://research.un.org/en/docs/ga/quick/regular/
70. Accessed 19 August 2016.
83
FAO CFS (2012) Voluntary Guidelines on the Responsible Governance of Tenure of Land,
Fisheries and Forests in the Context of National Food Security (VGGTs). http://www.refworld.
org/docid/5322b79e4.html. Accessed 20 August 2016, para 3.1.1.; Paoloni and Onorati (2014),
pp. 3 et seqq.
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276 M. Brunori
fisheries and forests are central for the realization of human rights, food security,
poverty eradication, sustainable livelihoods, social stability, housing security, rural
development, and social and economic growth.”84 Despite their explicitly
nonbinding and voluntary nature, the VGGTs acquire significant weight by being
incorporated in the document and by being recalled also in the UNGA Resolutions
on the Right to Adequate Food and on Agricultural Development and Food Secu-
rity. Surprisingly enough, 3 years after the adoption of The Future We Want, and
the VGGTs, Agenda 2030 does no use of the expression “land tenure,” rather
referring to “ownership and control over land and other forms of property”85
(Table 2).
Table 2 Sustainable development agendas for the new millennium

Johannesburg plan of
implementation The future we want Agenda 2030
7 c) Develop national Food security and nutrition 1.4 By 2030, ensure that all
programmes for sustainable and sustainable development. men and women, in particular
development and local and 109. [. . .] We recognize the the poor and the vulnerable,
community development importance of taking the nec- have equal rights to economic
[. . .], to promote the empow- essary actions to better resources, as well as access to
erment of people living in address the needs of rural basic services, ownership and
poverty and their organiza- communities through, inter control over land and other
tions. These programmes alia, enhancing access by forms of property, inheri-
should reflect their priorities agricultural producers, in par- tance, natural resources,[. . .].
and enable them to increase ticular small producers, 2.3 By 2030, double the agri-
access to [. . .] land, water women, indigenous peoples cultural productivity and
[. . .]; and people living in vulnera- incomes of small-scale food
h) Promote, as appropriate, ble situations, to [. . .], secure producers, in particular
land tenure arrangements that land tenure, [. . .] women, indigenous peoples,
recognize and protect indige- 115. [. . .] We encourage family farmers, pastoralists
nous and common property countries to give due consid- and fishers, including through
resource management sys- eration to implementing the secure and equal access to
tems; Committee on World Food land, other productive
i) Adopt policies and imple- Security Voluntary Guidelines resources and inputs, knowl-
ment laws that guarantee well on the Responsible Gover- edge, financial services, mar-
defined and enforceable land nance of Tenure of Land, kets and opportunities for
and water use rights and pro- Fisheries and Forests in the value addition and nonfarm
mote legal security of tenure, Context of National Food employment.
recognizing the existence of Security.
different national laws and/or
systems of land access and
tenure.
84
FAO CFS (2012), para 4.1.
85
Agenda 2030, Sustainable Development Goal 1.4.
3 Content Analysis of the UNGA Resolutions.

Characteristics of the Debate on Land: Subjects,
Terminology, and Resulting Obligations
What emerges from the analysis just concluded is that land issues have always been
a relevant topic in the General Assembly agenda. Considered originally only for its
agricultural production function, during the decades, and especially since the ’90s,
the land discourse has been enriched with considerations pertaining not only to the
economic aspect of agricultural production but also to more fundamental needs of
individuals and rural societies, such as livelihood, food security, identity, and
nondiscrimination. Those values are reflected also in several human rights, such
as the right to adequate standard of living, food, and housing; the right to equality
and nondiscrimination, and the rights of cultural identity and self-determination of
indigenous peoples. For this reason, several authors suggest the necessity to recog-
nize a specific human right to land,86 or to agrarian reform.87
Conversely, what appears also quite clearly is that there is a lack of uniformity in
the terminology used. This is probably due by three orders of reasons: the first one
in the difficulty of using, in a general fashion, terms that draw their meaning from
specific juridical systems. The second reason should be found in the negotiation
process, where different interests, ideologies, and legal traditions must be balanced
in order to reach a compromise. The third reason is the political, rather than legal,
character of the context in which those documents are drafted. Notwithstanding the
heterogeneous terminology, some commonalities can be grasped among the multi-
tude of recommendations and provisions.
3.1 Access to Land
Resolutions do not offer an explanation of what exactly is the meaning of the term.
Nevertheless, from the context, it can be assumed that when reference is made to
access to land, there is an implicit understanding of its meaning. According to a
2008 UN-Habitat report, land access represents the opportunities for temporary or
permanent use and occupation of land for different purposes, e.g. for shelter,
productive activity, or the enjoyment of recreation and rest.88 Access to land is
used to synthetically describe the functional relationship between land and the
individual or group; it relates to the possibility of resorting to land as a means of
satisfaction of individual or group needs; it focuses on the benefit that can be
derived from land regardless of the juridical situation. An example of this
86
See, for example, De Schutter (2010) and Gilbert (2013).
87
Coomans (2006).
88
UN-HABITAT (2008).
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278 M. Brunori
understanding could be found in the VGGTs’ Preface, which declares that “[t]he
livelihoods of many, particularly the rural poor, are based on secure and equitable
access to and control over these resources.” In this sentence, access to natural
resources represents the means through which the rural poor can draw the oppor-
tunity to satisfy their basic needs.
An exception to the common use of the expression is represented by the UN
Guiding Principles on Alternative Development, which seems to refer to land
access in the restrictive sense of “access rights.” Conversely, the Peasants’ Charter
included in the concept of access to land also other measures aimed at guaranteeing
the continuative control over the land access, as shown. These exceptions give the
idea that, according to the interpretation, the concept of access to land can cover a
very broad ensemble of situations, including the juridical relationships with the
resource, or, on the contrary, can completely overlook them. Notwithstanding the
potential breadth of this concept, though, the way this expression is used in the
majority of the documents does not allow to affirm that this wide set of actions are
intrinsically incorporated in the concept.
The concept of access to land per se, putting the accent on the economic
relationship with the resource rather than on the juridical one, does not intrinsically
comprehend the recognition and protection of the existing subjective situations with
regard to land or the means through which an individual can enjoy a degree of
stability of its benefit flow. In other words, access to land per se does not encompass
the concrete conditions that enable to enjoy the existing or potential relationship
with the resource in order to effectively draw benefits from it. The term “access to
land” is used rather with reference to the opportunity, for those individuals or
groups that are currently lacking a relationship with land, of acquiring it. This
nuance can be appreciated, for instance, in Agenda 21, para. 3.8, lett. O, which
suggests making available “improved access to land for the landless poor so that
they can acquire the means of production and reliable access to natural resources.”
This terminological choice is also adopted in the last draft of the United Nations
declaration on the rights of peasants and other people working in rural areas,
presented during the fourth session of the open-ended intergovernmental working
group on a United Nations declaration on the rights of peasants and other people
working in rural areas, which took place from May 17 to 20, 2017, which uses the
term “land access” when dealing with the restoration of the previously evicted land
or with redistribution and in the other cases that refer to land tenure rights.89
Despite that the expression “equitable access to land” is recurrent, especially in
the first decades, the persisting variety of formulations of the concept does not allow
to affirm that there is an established consensus on adopting explicitly the equity
criterion in the promotion of access to land. In fact, if we just consider the
terminology used in resolutions from 2000, we find “expanded access to land”
89
Draft declaration on the rights of peasants and other people working in rural areas presented by
the Chair-Rapporteur of the working group (6 March 2017) UN Doc A/HRC/WG.15/4/2, art 19.6.
For a survey on the negotiation process see Golay (2015).
(Resolution n 65/178), “equitable access to land” (Resolution n 66/220), “increase

access to land” (Resolution n 67/253), “secure and equal access to land” (Resolu-
tion n 70/1). Nevertheless, the need to promote equity when dealing with land
access has great relevance and cannot be dismissed for it is not fully agreed upon.
Provided that the promotion of access to land is a required action to be taken,
what does it represent? Is it a value/benefit in itself; is it an instrument for reaching
development targets, such as agricultural productivity and income; or is a
metaright, i.e. a means by which human rights are fulfilled? Normally, when a
resolution addresses the development of the agricultural sector, it mentions land
while listing all the assets whose access is deemed instrumental for the revitaliza-
tion of the sector, for example credit, market, technology, inputs, knowledge,
training, etc. So land is considered a “productive resource.” Does land have the
same importance of the other goods and services that are listed as contributory to
rural development, or does it have a special, greater value? Some of the analyzed
documents offer a different view: Agenda 21 recognizes that “land resources are the
basis for (human) living systems and provide soil, energy, water and the opportu-
nity for all human activity,”90 and according to the VGGTs, “land, fisheries and
forests are central for the realization of human rights, food security, poverty
eradication, sustainable livelihoods, social stability, housing security, rural devel-
opment, and social and economic growth.”91 Those statements are signs of an
evolving appraisal on the value of land and natural resources, despite not being
completely affirmed in the states’ opinion.
3.2 Land Tenure
Both in literature and in international organizations’ reports, several different

definitions of land tenure can be found. Despite the lack of an official one, the
various definitions share some common features. In most cases, those features are
complementarily used to explain the concept of land tenure; therefore they should
be considered not as alternatives but rather as depicting the same concept from
different viewpoints.
90
91
FAO CFS (2012), para 4.1. Furthermore, the Johannesburg Plan of Implementation quotes, at
part II, lett. e: “Recognize that traditional and direct dependence on renewable resources and
ecosystems, including sustainable harvesting, continues to be to the cultural, economic and
physical well-being of indigenous people and their communities.” UN General Assembly Reso-
lution n 57/253 supra note 82. The 2007 Indigenous Peoples’ Declaration in the preamble affirms
that “control by indigenous peoples over developments affecting them and their lands, territories
and resources will enable them to maintain and strengthen their institutions, cultures and tradi-
tions, and to promote their development in accordance with their aspirations and needs.” UN
General Assembly Resolution n 61/295.
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280 M. Brunori
The first approach is to describe land tenure as an institution portraying a

relationship, or a set of relationships. The means through which the relationship
is shaped can be either the law or the custom. The object of the relationship is
twofold: the direct relationship is the one between the land and the individual or
group; the indirect relationship is between individuals or groups in their dealing
with land.92 The recourse to the concept of relationship allows to compare the
previously analyzed concept of land access with the one of land tenure, hitherto
permitting to appreciate the commonalities and differences between the two terms.
Whereas access gives an internal perspective of the relationship with the resource,
by alluding to the consequences that from the resource flow to the individual (e.g.,
attainment of livelihood), tenure pertains to the external dimension of the relation-
ship, which affects the flow of effects from the resource to society (regulation of
behaviors).
The complementarity between the two concepts is expressly rendered through
the second pattern of definition, which describes land tenure as the system of access
to land and related resources within societies.93 In some definitions, tenure relates
both to access and control.94 The control of land is a term that recurs in combination
with access to land, and sometimes also with use, and with ownership.95 I would
define “control” of land as the possibility of putting in place a continued action
aimed at disciplining behaviors that would allow for the pursuit of interests on land
(on which the individual/group has access to) and “use” as the concrete activity
through which the individual expresses his relation with land.
The third way of defining land tenure is through the description of its object:
rules of tenure define the right to hold land, or “how (property) rights to land are to
be allocated within societies.”96 Some definitions add to this general statement a list
of the possible rights to land: “rules of tenure define how access is granted to rights
to use, control, and transfer land, as well as associated responsibilities and
92
FAO (2002a) “the relationship, whether legally or customarily defined, among people, as
individuals or groups, with respect to land”; UN-HABITAT (2008) “the set of relationships legally
or customarily defined between people and land directly, and between individuals and groups of
people in their dealings in land.”
93
VGGTs Preface: “how people, communities and others gain access to land, fisheries and forests
is defined and regulated by societies through systems of tenure” FAO CFS (2012) supra note 83;
Tenure and ETFOL (2004), para 2.1.3: “system of access to and control over land and related
resources.”
94
Tenure and ETFOL (2004), para 2.1.3.
95
FAO CFS (2012) Supra note 83. Preface: “The governance of tenure is a crucial element in
determining if and how people, communities and others are able to acquire rights, and associated
duties, to use and control land, fisheries and forests.” World Summit for Social Development 1995
supra note 56 Chapter II, 23: Poverty is inseparably linked to lack of control over resources,
including land, skills, knowledge, capital and social connections.
96
FAO (2002a) p. 7.
restraints,”97 or “it defines the rules and rights which govern the appropriation,
cultivation and use of natural resources on a given space or piece of land.”98
3.3 Land Right, Property Rights, Land Tenure Rights
The last approach to define land tenure allows to appreciate the difference between
land tenure and property rights, which Payne and Durand-Lasserve define as
“recognized interests in land or property vested in an individual or group and can
apply separately to land or development on it (e.g. houses).” They add that a
recognized interest may include customary, statutory, or informal social practices
that enjoy social legitimacy at a given time and place.99 Tenure relates to the means
by which land is held; property rights relate to who can do what on a plot of land.
So it could also be said that tenure of land shapes the form or the juridical
perimeter of the relationship, whereas property rights draw its juridical content. In
the UN-Habitat 2008 report “Secure Land Rights for All,” the authors differentiate
between land rights and property rights, defining the first as “socially or legally
recognized entitlements to access, use and control areas of land and related natural
resources” and the second as “recognised interests in land or property vested in an
individual or group.” According to this report, the difference between property
rights and land rights is in the fact that the second relates more to the holding of the
land, whereas the first pertains to the entitlement to derive benefits from it regard-
less of the ownership of the land.
This distinction is not reflected in other studies: the publication Land Tenure and
Rural Development (FAO 2002) uses interchangeably the expressions property
rights to land, land rights, and land tenure rights, but in the glossary it defines
only land rights, as “rights held to land and other natural resources.” Wisborg
describes land rights as to include rights to hold, access, use, manage, or transact
a particular piece of land,100 and Monsalve Suarez writes that “land rights refer to
specific property or use rights to land which are recognized and enforced by
statutory or customary law. Land rights regulate tenure rights among land owners
and users.”101
The IIED Tenure Lexicon (which is based on the analysis of African land laws)
reports that “the African concept of property rights denotes the allocation of land or
resources to a specific use. There are as many rights over land as there are accepted
uses and the same object can be invested with different functions in different
97
Ibid.
98
Tenure and ETFOL (2004), para 2.1.3.
99
Payne and Durand-Lasserve (2013), p. 8.
100
Wisborg (2013), p. 1201.
101
Monsalve Suarez (2012), p. 4.
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282 M. Brunori
cultures,” and it makes reference to the Ostrom and Schlager 1992 study, which
distinguishes different rights that compose the bundle, which are, at an operational
level, rights of access to a defined physical area and the right of withdrawal and, at
the collective level, the right to manage, the right to exclude, and the right to
alienate.102 This publication does not make reference to “tenure rights” or to “land
rights.”
The EU Land Policy Guidelines affirm that land rights are not limited to private
ownership in the strict sense: there can be a very diverse balance between individual
rights and duties, and collective regulations, at different levels (different levels of
family organization, communities, local governments, or the state). Private or
family ownership is only one possible case. This document defines only land rights
but uses both the expressions land rights and property rights, as if they were
synonyms.103
The VGGTs affirm that states have the power to allocate tenure rights in various
forms, from limited use to full ownership.104 From this sentence it is possible to
draw a general category (land tenure rights) which encompasses all forms of tenure
arrangement, among which there is the most complete “bundle of rights” that is
ownership—which comprehends the right to use, to dispose of and to enjoy the
fruits—together with minor rights, such as use and access rights.105
From these uses, we can conclude that property rights, tenure rights, and land
rights are often used as synonyms, and the different terminological choice is
determined by political reasons rather than juridical ones, pointedly from different
juridical traditions and cultural beliefs.106 Therefore, the choice of using tenure
rights or land rights mirrors a “neutral” approach to describe in general terms what
pertains to different legal cultures and differentiates substantially according to the
context. De Schutter, for instance, writes: “if the development of property rights
results in the marketability of land rights without appropriate safeguards,” meaning
with this sentence to differentiate from previous customary tenure systems to the
western concept of property rights. On the same lines writes Assies, who uses the
terms “tenure rights” referring to customary regimes, “land rights” in general to
encompass the wide range of tenure arrangements that are extralegal (not
102
Ostrom and Schlager (1992), in IIED (2000), pp. 41 et seqq.
103
Tenure ETFOL (2004), para 6.1.1.
104
FAO CFS (2012), para 8.8.
105
FAO CFS (2012) para 8. Access right is a locally or legally recognized right to enter a defined
physical area—IIED Tenure Lexicon (2000), p. 10.
106
The situation is not different in the Inter-American Court of Human Rights [IACtHR] practice:
in the Saramaka v Suriname case land rights, property rights and tenure rights are used. Case of the
Saramaka People v Suriname, Saramaka People v Suriname, Interpretation of the judgment on
preliminary objections, merits, reparations and costs, IACtHR Series C No 185, IHRL 3058
(IACtHR 2008), 12th August 2008, Inter-American Court of Human Rights [IACtHR]. http://
opil.ouplaw.com/view/10.1093/law:ihrl/3058iachr08.case.1/law-ihrl-3058iachr08. Accessed
20 August 2016.
recognized by the state), and property rights when referring to De Soto’s conception
of western, fungible rights.107
Other recurrent expressions are access to land tenure, access to land rights, or
access to land ownership and use, which suggest to be referring to the possibility to
hold tenure rights.108 Those expressions can entail further reflections about their
meaning: a first reflection considers the fact that some categories of people already
enjoy access to land, but they are deprived of any legal recognition of their interest
in the land they use or occupy (or that is possible to gain access to land but is not
possible to see the relationship with land recognized with a legal entitlement); a
second one considers that providing access to land without giving a minimum of
tenure security does not guarantee any improvement in the situation; therefore,
access to land should be always coupled with a degree of tenure security.
To this regard, Agenda 21 marks a distinction between access to the resource and
access to the tenure (the text makes only reference to ownership, though) by saying
“consider strengthening/developing legal frameworks for land management, access
to land resources and land ownership—in particular, for women—and for the
protection of tenants.”109 Agenda 21 therefore distinguishes between the two
spheres of the relationship with land: the first is for the satisfaction of needs; the
second is set to attain the legal protection of the relationship. The same use of
terminology is adopted by Agenda 2030, which calls for both “access to ownership
and control over land” and “equal access to land.”110 The first expression is used in
the context of the action for ending poverty, the second in the section aimed at
ending hunger, promoting food security and sustainable agriculture.
It is not uncommon to find in the UNGA resolutions the use of the expression
“forms of ownership” or “forms of property.”111 This is a more problematic
terminological choice because it alludes to the multiplicity of tenure rights (forms
of) but then uses as a general category an indeed defined set of tenure rights,
precisely ownership. In particular, this terminological choice raises perplexity
107
Assies (2009), pp. 573 et seqq. Another example of this use is found in the Seufert and
Monsalve Suarez (2015), p. 28.
108
Johannesburg Plan of Implementation (2002), supra note 82: “b) Promote and support efforts
and initiatives to secure equitable access to land tenure and clarify resource rights and responsi-
bilities”; Cairo Conference (1994), supra note 55: “actively support access to ownership or use of
land and access to water”; UN General Assembly Resolution 65/178, supra note 75: Recognizing
that smallholder farmers, including women and indigenous peoples, may not have the equitable
access to tools, markets and land tenure rights that is needed for them to reach their productive
potential”; UN General Assembly Resolution 66/220, supra note 76: “access by agricultural
producers, in particular small producers, women, indigenous peoples and people living in vulner-
able situations, to [. . .] secure land tenure.”
109
110
UN General Assembly Resolution 70/1, supra note 82 at Sustainable Development Goals 1.4
and 2.3.
111
E.g. see UN General Assembly Resolution 2542 Declaration on Social Progress and Devel-
opment A/RES/2542 (11 December 1969), supra note 32 at Article 6; Agenda 2030 UN General
Assembly Resolution 70/1, supra note 82 at Sustainable Development Goals 1.4 and 2.3.
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284 M. Brunori
when used in the recent Agenda 2030, which overlooks all the acquired sensitivity
on this debate.
Ownership has been traditionally regarded by the General Assembly as a pattern
of property right that interventions in agriculture should strive to promote. The
concept of ownership (or “real property”) is rooted in the western law systems, and
it constitutes one specific and restrictive form of land appropriation, limited to
particular rights to control access and transfer the resource, which are independent
of both the nature and the use of the thing. According to Okoth-Ogendo, ownership
is a concept within European law that represents the appropriation of all rights of
use, abuse, and disposition of specific parcels of land.112 Through this definition of
land ownership, land is considered an asset that can be exploited and turned to
profit. The three prerogatives conveyed in the real right of property are the right to
use, to dispose of, and to enjoy the fruits obtained from the property.113 The
characteristic that usually distinguishes full ownership from other rights to property
is the right to transfer it, including the right to alienate it to nonrelatives or nongroup
members.114 With the exception of the Peasants’ Charter, which never mentions it,
the majority of resolutions’ and conferences’ outcomes of the last century see
ownership as the form of land tenure that is more likely to ensure its security and
increase income.
In reaction to the raising awareness of the importance of traditional systems of
tenure for food security and the livelihood of rural population, the recognition of
customary tenure rights has increasingly been included in the discourse of land
access and tenure. The programmatic documents released in the ’90s (Agenda
21, the Programme of Action of the International Conference on Population and
Development, the Copenhagen Declaration on Social Development) promote
“access to ownership,” along with security of tenure for all land users. More
recently, the Johannesburg Plan of Implementation and The Future We Want do
not mention ownership but focus on security of tenure and recognize different
systems of land tenure and use rights. On the contrary, Agenda 2030 reverses the
trend, omitting to mention the protection of land tenure and considering “ownership
and control over land and other forms of property” and secure and equal access to
land.115 According to civil society, this language is perceived as weaker than the
one considering tenure rights for the reason that, on the ground, the sole mention of
access to land gives grassroots movements far less bargaining power compared with
the provision of protection of tenure rights.116
112
Okoth-Ogendo (1987), pp. 226–227.
113
Ibid.
114
IIED (2000), p. 41.
115
UN General Assembly Resolution 70/1 Transforming our world: the 2030 Agenda for Sustain-
able Development A/RES/70/1 (25 September 2002).
116
“For their full benefits to materialize, rights to land and natural resources must be secure.
“Secure” land tenure is the language used in the Voluntary Guidelines and the Rioþ20 Outcome
Document. Focusing solely on “access” to land does not guarantee that an individual or commu-
nity has effective control over the longer term, limiting their confidence to invest and use the land.
3.4 Tenure Security
In the UN-Habitat documents, secure tenure is “the right of all individuals and
groups to effective protection by the state against forced evictions” and can be
defined as “an agreement or understanding between an individual or group to land
and residential property, which is governed and regulated by a legal and adminis-
trative framework.”117 According to Payne and Durand-Lasserve, security of tenure
derives from the fact that the right of access to and use of the land and property is
underwritten by a known set of rules and that this right is justiciable. Another
definition found in a UN-Habitat report takes into account the perception, the
psychological element: tenure security is the “degree of confidence that land
users will not be arbitrarily deprived of the rights they enjoy over land, and the
economic benefits that flow from it.”118
Sjaastad and Bromley, after an extensive survey of case studies, write that the
common understanding for tenure security is the risk of losing land.119 They
nevertheless adopt an alternative definition, created by Barrows and Roth, which
describes tenure security as “the perception of the likelihood of losing a specific
right to cultivate, graze, fallow, transfer, or mortgage.” They stress that this
definition allows to perceive the fact that (1) security pertains to each single right,
(2) land rights are not necessarily contained in the same unit of land, (3) there is a
difference between the perception of likelihood and the likelihood itself.120 In
adopting this definition, the authors also note that this definition only considers
the loss of rights, whereas there can be other factors that affect the security of
tenure. Violation, attenuation, replacement, annulment, and imprecision of rights
are different aspects of tenure insecurity and generate different outcomes, each of
which is related to a particular loss of benefit and a particular likelihood of
occurrence. Insecurity of tenure is, for the authors, a collection of the perceptions
of an individual, the fear of not being able to benefit in full from the set of rights to
which one lays claim, and the uncertainty associated with the nature of this set of
rights.
From what is seen above, there could be at least four degrees of breadth of tenure
security: (a) protection against arbitrary forced eviction; (b) protection against the
loss of a right, as well as its violation, attenuation, replacement, annulment, and
imprecision; (c) perception of the likelihood to be protected against the loss of a
right; (d) degree of confidence that land users will not be arbitrarily deprived of the
In addition, it may limit the applicability to legislative frameworks. This is especially true for
women. Likewise, language that refers to “ownership” only does not capture the range of
individual and collective tenure arrangements that vary among and within countries, and may
unintentionally exclude some of these countries.” NGO (2015), p. 5.
117
UN Habitat (2015), p. 2.
118
Bazoglu (2011), p. 36.
119
Sjaastad and Bromley (2000), pp. 365–389.
120
Barrows and Roth (1990), p. 292.
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286 M. Brunori
rights they enjoy over land, as well as of the economic benefits that flow from
it. There are two elements that differ from the definitions just listed: the first is the
fact of considering or not other damages other than the loss of land (violation,
annulment, replacement, attenuation: or, said in economic terms, the reduction of
benefits deriving from a single right); the second element is the consideration of the
psychological element, i.e. the subjective perception that the right holder has with
regard to the likelihood of bearing a damage on his right.
A broad understanding of tenure security is found in the 1979 Peasants’ Charter,
which affirms that governments should consider action to “enforce security of
tenure for tenants, including sharecroppers, as a means of social equity, improving
access to credit and services and stimulating investment.”121 The document
includes improved access to credit and services among the conditions to raise the
security of tenure.
Notwithstanding those broad definitions, the one that should be taken into
account for interpreting the more recent resolutions is the first one, for the reason
that the Committee of the Economic Cultural and Social Rights, in its General
Comment n.4 of 1991, affirmed that “all persons should possess a degree of security
of tenure which guarantees legal protection against forced eviction, harassment and
other threats.”122 The same sentence is found in the VGGTs, in paragraph 4.4, when
dealing with rights and responsibilities related to tenure.123 What we could draw
more precisely from this sentence is that states should ensure everyone, regardless
of the formality of its tenure arrangement, a degree of security of tenure that at least
guarantees legal protection against forced eviction, harassment, and other threats.
To confirm this understanding, paragraph 10.6 of the VGGTs affirms that “where it
is not possible to provide legal recognition to informal tenure,” states should
prevent forced evictions that violate existing obligations under national and inter-
national laws.124
If, on the one hand, the promotion of the security of tenure is plainly recognized
as a necessary action to take, on the other hand, the way in which the security is to
be strengthened and the individuation of the stakeholders that should benefit from
the increased tenure security are details that are not yet clarified. If the means
through which land tenure security is to be implemented are better left
undetermined, for they should be shaped according to the national and local
context, what needs to be clarified is the goal that the improved security of tenure
should strive to achieve. De Schutter identifies two visions of security of land
121
FAO (1981), p. 11.
122
UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 4:
The Right to Adequate Housing (Art. 11 (1) of the Covenant), 13 December 1991, E/1992/23.
http://www.refworld.org/docid/47a7079a1.html Accessed 20 August 2016.
123
“All forms of tenure should provide all persons with a degree of tenure security which
guarantees legal protection against forced evictions that are inconsistent with States’ existing
obligations under national and international law, and against harassment and other threats.” FAO
CFS (2012), para 4.4.
124
FAO CFS (2012), para 10.16.
tenure: the one oriented toward the marketability of land, equating the increased
security of tenure with strengthened property rights, and the other aimed at broad-
ening the entitlement of the group concerned in order to ensure more secure
livelihood.125 Even if the VGGTs are a step in this direction, the consensus on
this topic is not yet established.
3.5 Subjects
In the UNGA resolutions, there is a wide heterogeneity on the terminology used to

describe the subject that would benefit from the access to land and tenure security.
The ensemble of expressions used could be catalogued according to four categories.
The first category identifies the subjects on the basis of their relationship with land:
small and medium-sized farmers, land users, those who work the land, small
producers, small food producers, agricultural producers, agricultural workers, ten-
ants, sharecroppers, small cultivators, family farmers, smallholder farmers. The
second category identifies the beneficiaries by means of belonging to a collective
identity: rural communities, rural population, local communities, indigenous com-
munities, pastoralists, fisherfolk, nomadic communities, etc. The third approach
identifies the beneficiaries on the basis of their socioeconomic situation: people
living in poverty, people living in vulnerable situation, poor producers, landless
poor, rural poor, most vulnerable. A last category is based on the personal identity
or personal condition of the beneficiaries: women, youth, migrants, indigenous
people.
Since the endorsement of the Peasants’ Charter, the majority of the UNGA
resolutions prefer to expressly recall all the different categories of stakeholders,
rather than using a general all-including concept, as recognition of the specificity of
needs and characteristic of each social group. Each of the subjects mentioned bears
a particular protection under a special body of international law, and its recognition
is propaedeutic for the reaching of substantive equality.
4 Conclusions and Future Perspectives: Land and Equity
In the Preface, the VGGTs affirm that the systems of tenure are the way through
which societies define and regulate how people, communities, and others gain
access to land, fisheries, and forests. To some extent, tenure systems and access
to land are two sides of the same coin. But the claim for access to land can also
imply a modification of the land tenure system in order to include actors that are
formally excluded and modify the land tenure patterns in order to give land to those
125
De Schutter (2010), p. 334.
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288 M. Brunori
subjects that are substantially excluded. Guaranteeing a long-term access to land

may also require measures that go beyond the sphere of tenure systems, such as
measures to avoid distress land sales caused by indebtedness. The sum of those
measures is referred to, in the VGGTs, as “governance of tenure.”
Interpreting the land issues through the equity lens could bring some clarity in
the picture by systematizing the many aspects of land access and security of tenure.
The VGGTs insert equity and justice among the principles of implementation, by
affirming that “recognizing that equality between individuals may require acknowl-
edging differences between individuals, and taking positive actions, including
empowerment, in order to promote equitable tenure rights and access to land,
[. . .].”126 Defining equity is outside the scope of this chapter, but operationalizing
equity could provide useful categories to understand and conceptualize the meaning
of access to land and to clarify the content of the state obligation toward the
promotion of the access to land. It could also test the measure of the state’s consent
and international agreement on the issue. “Operationalizing equity” means to
decline the concept along its various dimensions: a first partition is between
objective equity and subjective equity. Objective equity refers to equity in the
way access to land is protected or promoted (what should be taken into account),
whereas subjective equity refers to equity between stakeholders with respect to land
access and tenure security (which should be taken into account). Along the objec-
tive dimension of equity, issues of recognition (recognition of rights and funda-
mental interests on land and natural resources), procedure (participation, access to
information, and justice), and distribution (fair allocation of resources) should be
assessed.127
Along the subjective dimension of equity, both the temporal and the spatial
spectrums should be analyzed, taking into consideration the intra- and
intergenerational equity for the first and the intra- and intercommunity equity for
the second. As showed in Table 3, declining access to land along the equity
dimensions facilitates to put several standards into a coherent framework and to
appreciate the instrumentality of certain factors to the objective of realizing equity.
Indeed, the parallel consideration of the objective and subjective dimensions of the
principle would allow to reconcile the different standards spelled out in the docu-
ments. Indeed, even if some resolutions put attention only on one aspect (for
example, when access to land is promoted without recalling the aspect of recogni-
tion of existing rights, or of security of tenure, or when security of tenure is
promoted without acknowledging the problem of landlessness or again when
communal land is protected without mentioning the situations of intracommunity
inequality), the interpretation of the provisions in the light of equity would allow to
bring into the picture the multifaceted situation related to land governance and
would allow to make a balance test between the interests and goals (increasing
productivity, strengthening food security, respecting human rights, such as cultural
126
FAO CFS (2012), p. 4.
127
IIED (2015), p. 1. For the idea of “operationalize equity” see Morgera (2014).
Table 3 Equity dimensions and access to land
Equitable access to land
Objective equity Subjective equity
Recognition Procedure Distribution Temporal Spatial
Customary and Associations/organi- land reform, Intragenerational Intergenerational Intracommunity Intercommunity
informal land rights, zations, land market, security of land land use, access to land for migrants,
indigenous peoples’ prior informed con- land tenure tenure, land tenure farmers, urban dwellers and rural
rights, sent for indigenous systems investments systems landless rural poor population, indigenous
women’s equal rights peoples, and most vulnerable peoples
to own, buy, and education and people,
inherit training, equal rights for
enforcement and women,
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access to justice youngsters,
fishermen, nomadic,
pastorals
Access to Land and Security of Tenure in the Resolutions of the United. . .
289
290 M. Brunori
rights, the right to food and housing, right to nondiscrimination), ensuring a fair and
equitable outcome. Finally, applying the equity lens in the interpretation of the
provisions contained in the UN General Assembly resolutions could be a useful tool
to overcome the several terminological and conceptual inconsistencies of the
documents and to bridge the achievements made in different contexts and years,
therefore facilitating, in the future, a more uniform and sound advancement of the
standards related to land governance.
References
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J Agric Environ Ethics 26:1199–1222
Global Land Rush, Water Grabbing
and the Human Right to Water
Francesca Spagnuolo
1 Introduction
The term “global land rush” reflects a trend in land acquisitions for large-scale
agriculture and biofuel production. This trend has been nurtured, on the one hand,
by an increased demand for food, driven by population growth, dietary changes, and
price volatility in agriculture commodities1 and, on the other, from rising oil prices
and concerns regarding the impact of nonrenewable energy on climate change.2
As a result, the number of large-scale land deals has dramatically increased over
the past 10 years.3 According to Land Matrix, an online public database collecting
information on land deals, since 2000, more than 500 transnational large-scale land
deals (i.e., covering an area of 200 hectares or more) have been concluded, while
more than 100 are currently under negotiation.4 Although not completely reliable
(as land deals are normally negotiated secretly and without public involvement),
these data highlight the global flow of transnational land acquisitions and its main
drivers (agriculture, forestry, renewable energy, or other).5 They also reveal that
1
Deininger (2013), pp. 95–119.
2
Elbehri et al. (2013); Kay and Franco (2012); and Franco et al. (2014) (revised ed.).
3
See Deininger et al. (2011).
4
The Land Matrix is a monitoring initiative coordinated by a number of NGOs and research
centres, including the International Land Coalition, and the German Institute of Global and Area
Studies, plus several regional focal points. The initiative, which is financed partly by the partner
organizations, partly by the European Commission and other donors (governments, civil society
organizations), gathers information on land deals mainly from research papers and policy reports
by international and local NGOs; field based research projects, media and official government
records.
5
Liao et al. (2016).
F. Spagnuolo (*)
Institute of Law, Politics and Development (Dirpolis), Scuola Superiore Sant’Anna, Pisa, Italy
e-mail: f.spagnuolo@santannapisa.it

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294 F. Spagnuolo
most large-scale transnational land deals are concluded with the intention of
growing crops for food, feed, and biofuel, which are all primary water user sectors.
2 The Implications of the Global Land Rush for Water

Resources
The rush for land, denounced by some as a “land grab,” is characterized by the
transfer of the right to own, or use, State-owned land from local communities to
foreign investors (namely investment funds, transnational companies, foreign
governments).6
Land grabbing consists of large-scale (chiefly, but not exclusively, transnational)
land acquisitions through long-term leases or contracts (i.e., signed deals), granting
the lessee/investor the right to cultivate the land and use it at its discretion—
including the control over natural resources, such as water, subsoil minerals, and
genetic matter7—without adequate compensation for the previous land users and
with limited or no consultation with the local population.8
This phenomenon, which has historical precedents in the colonialism and impe-
rialism eras—and was first theorized by Karl Marx with reference to English
enclosures9—is occurring in all regions of the world, except Antarctica. Although
Africa and Asia are the main land-grabbed continents, relatively high land-grabbed
areas can also be found in Australia and Russia. While in Latin America, Brazil and
Argentina are both land grabbers themselves as well as being major targets of
(foreign) land acquisitions.10 However, the drivers of land grabbing are diverse in
different countries/continents. For example, while in America, land grabbing is
mainly in relation to large-scale agriculture investments for food, in Africa and
Oceania biofuel production and forestry are prevalent.11
Today’s land grabbing differs greatly from the past.12 First of all, unlike the past,
contemporary large-scale land acquisitions involve international investments and
the trade regime and are embedded in the politics of global governance.13 Second,
they occur in sovereign states that exercise, at least formally, control over public
lands (so that national governments are in some way responsible for the grabbing
6
Cotula et al. (2009) and Anseeuw et al. (2012).
7
Borras et al. (2012a), pp. 402–416.
8
Rulli et al. (2012), World Bank (2010) and Cotula et al. (2009).
9
Marx (1977) [1867]; White et al. (2012).
10
Rulli et al. (2012); Perrone (2013), pp. 205–209.
11
For categorization and details see the Global Map of Investments on Land Matrix http://www.
landmatrix.org/en/.
12
Margulis et al. (2013), pp. 1–23.
13
Margulis et al. (2014).
Global Land Rush, Water Grabbing and the Human Right to Water 295
process taking place in their country14). Third, current large-scale land acquisitions
are very often associated with the allocation of water rights or with potential access
to water for irrigation; thus, they are essentially driving “water grabbing.”15
2.1 The Water Dimensions of Land Grabbing
According to a study on the water grabbing associated with large-scale land

acquisitions, about 90% of the global land-grabbed areas in the world are located
in 24 countries, most of which are in Africa.16 In most of these African countries,
the lack of human, institutional, and financial capital needed to access water makes
this resource abundant but underutilized.17 As a result, countries experiencing or
approaching physical water scarcity (i.e., are using more than 75% of their available
freshwater resources) seek to secure access to water in Africa. An example is the
Arab Emirates, which is already investing in several East African countries (such as
Sudan and Ethiopia), where governments are ready to allocate both land and water
rights to foreign investors.18
In these circumstances, water grabbing raises particularly pressing ethical concerns
as water is most often used to sustain agricultural production destined for export,
while the local population is affected by high levels of malnourishment.19 While land
and water grabbing enhance food (and energy) availability in the grabbing countries,
they impact negatively on food security within the grabbed countries.20 Furthermore,
even when the land-grabbed countries do not suffer from food insecurity, large-scale
land acquisitions and the associated water grabbing profoundly affect the quantity and
quality of local water. For example, large-scale hydropower projects divert water from
local communities (mainly rural) to “private” owners from the industrial sector, thus
threatening the livelihoods of the local villagers as has recently happened in Turkey
and the Democratic Republic of the Congo.21
This is often made possible by the narrative of “unused” or “marginal”
resources, which tells the story of water flowing “in vain,” or lands that are
underutilized or “idle,” and provides the justification for national governments to
14
On the role of national legal frameworks in facilitating land grabbing see Künnemann and
Monsalve Suárez (2013), pp. 123–139.
15
Mehta et al. (2012), Smaller and Cotula (2011), Skinner and Cotula (2011) and
Woodhouse (2012).
16
Rulli et al. (2012).
17
WWAP (2012), p. 124; Molden (2007), pp. 57–89.
18
Cotula (2013).
19
In Ethiopia, for example, 31.6 million people are undernourished (32% of the total population).
While in the Arab Emirates, the number of people suffering from hunger is not statistically
significant. For further details see FAO (2015).
20
Rulli et al. (2012), p. 3. On these aspects, see also De Schutter (2009).
21
See Islar (2012a), pp. 376–391; Islar (2012b), pp. 317–329; Konak (2011); Franco et al. (2014).
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296 F. Spagnuolo
allocate land and water rights to foreign actors that have the financial and techno-
logical means needed to better exploit them.22
2.2 Water Itself as the Object of Grabbing
Sometimes water itself is the object of grabbing. This particularly applies to mining
and hydropower projects across the world. In these cases, water grabbing is not an
agriculture-driven process but in any case affects agriculture; for example, in
Anatolia (Turkey), many families rely on water for cultivating land and raising
livestock for their subsistence.23 Here, the Turkish government is completing a
project (the “Southeast Anatolian Project”), which includes the construction of
22 dams and 19 hydroelectric power plants and envisages increasing privately
owned and operated energy production by foreign renewable energy companies
(such as the Norwegian “Statkraft” and the German “RWE”).24 The project will
increase the economically usable energy potential of Anatolia, but in so doing it
will neglect the current and future uses of the river by local rural communities.
Similarly, in the Democratic Republic of the Congo, where more than 90% of the
population has no access to electricity, billions have been spent on the construction
of two mega dams (Inga 1 and 2), which will almost exclusively benefit mining
companies, given that the country does not have a national power grid to deliver
energy to its inhabitants.25 Yet, in 2013, the DRC government signed a cooperation
treaty with South Africa to construct the Inga 3 dam, which will produce energy
mainly for export. The dam is part of a larger hydropower development scheme
supported by several African governments and development organizations aimed at
filling the energy gap that is holding back the economic development of the
continent. The construction of the dam is planned to start in 2017, but as yet
there are no social and environmental impact studies publicly available, which
means the environmental and socioeconomic impacts of the project—including its
effects on agricultural land and natural environments—it have to date been
completely neglected.26
Another example of water grabbing for nonagricultural purposes is acts done by
multinational mining companies, such as Posco in India and Newmont Mining
Corporation in Peru. In the Yanacocha Mine in Peru—which is the largest gold
22
On this aspect see Borras et al. (2010), pp. 575–592. For an example of how this happens see
Hertzog et al. (2012), pp. 304–321, describing mechanisms of water grabbing in Mali.
23
Islar (2012a), pp. 376–391.
24
Islar (2012a). For a more in-depth analysis see Islar (2012b), pp. 317–329; and Konak (2011)
describing hydro-schemes in Turkey.
25
Pearce (2013).
26
International Rivers, Gand Inga Dam, Dr Congo, available at https://www.internationalrivers.
org/campaigns/grand-inga-dam-dr-congo.
mine in South America—water is of crucial importance for small-scale agriculture.

Reportedly, about 9000 farmer families live in the area influenced by the mining
activities, which require 125 m3 of water per year.27 In the case of Yanacocha, the
mining company leveraged its economic power and exploited the weaknesses in the
local water users’ association to gain access and control of the water previously
used for subsistence agriculture.28 According to some, this pattern of appropriation
characterized by unequal power relations is typical of “control grabbing,” a form of
grabbing occurring through legal (although not always legitimate) means.29 This
process enables powerful actors (the mining company, in the case of Yanacocha
mine) to gain control over stakeholders’ access to natural resources (land, water,
etc.) in order to acquire the benefits linked to their use.30 Thus, the grabbers decide
how the resources will be used, for what purposes, and by whom.
In the literature on natural resource grabbing, the privatization of public water is
sometimes also described as a form of water grabbing.31 Although water grabbing
often occurs through the commodification and privatization of water services, the
two phenomena cannot be equated.32 While water grabbing is a process character-
ized by the transfer of the rights over water resources, the privatization of public
water typically refers to water supply systems, not to water itself. This implies that
the property of the resource remains public, and the private water companies
supplying the service must comply with domestic water laws, including the right
to water. However, many studies indicate that by commodifying water, both water
privatization and water grabbing jeopardize access to water, particularly for the
poor and marginalized people.33 Commodification reconceptualizes water as an
economic rather than a public good and redefines water as something that can be
owned or leased.34 In so doing, it converts water into a for-profit good, not
27
Yanacocha (2007).
28
For a full account of the case study, see Sosa and Zwarteveen (2012), pp. 364–369.
29
See for ex. Franco et al. (2014). See also Borras et al. (2012b), pp. 227–254. As these authors
point out “grabbing the power to control land and other associated resources such as water in order
to derive benefit from such control of resources” is essentially “control grabbing.” Resource
control grabbing can take various forms, including purchasing and leasing, and involves large-
scale capital.
30
Borras and Franco (2012), pp. 34–59; Messerli et al. (2013), pp. 528–534.
31
See, e.g., Kay and Franco (2012), p. 2.
32
On water privatization see, among others, Gleick et al. (2002), pp. 57–86; Bakker (2010); Moyo
and Liebenber (2015).
33
On the negative effects of water privatization on access to water, see Petrova (2006),
pp. 577–613; Bayliss (2002), p. 21; Bayliss and Fine (2008); Budds and McGranahan (2003).
34
A turning point in this process is marked by the International Conference on Water and
Environment, held in Dublin, in 1992. Principle n. 4 of the Dublin Statement, adopted during
the conference, states: “water has an economic value in all its competing uses and should be
recognized as an economic good.” On the organization and running of the Conference see Young
et al. (1994). For a discussion of the implications of the Dublin Statement, and particularly
Principle n. 4, see Solanes and Gonzalez-Villareal (1999); van der Zaag and Savenije (2006);
Salman and Bradlow (2006) pp. 6–10 and 169. On water “as an economic good” see also Perry
et al. (1997); Mc Neill (1998), pp. 253–261; Savenije and van der Zaag (2002).
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298 F. Spagnuolo
affordable for all. This especially applies to Africa, Asia, and Latin America, where
water has been transformed into capitalized markets dominated by multinational
firms. Similarly, water grabbing has been made possible by the complicity of
national governments, which—as will be discussed in the next section—fail to
enforce domestic and international laws that are supposed to ensure human rights
obligations.
3 Water Grabbing from a Legal Perspective
3.1 The Legal Nature of Water Grabbing
According to the United Nations General Assembly, people and nations have a right
to “permanent sovereignty over their natural wealth and resources,” which include
land, vegetation, animal life, and water.35 As a consequence, governments are free
to allocate water to private or public (foreign) investors without violating domestic
law. The relevant point here is how water rights are allocated to these subjects and
whether or not national legislation is interpreted or redefined in order to legitimize
water grabbing.
In many countries, especially in Africa, water has been governed for a long time
by customary rather than formal rights (i.e., licenses, royalties, concessions, leases),
so that local people have rarely developed formal control over the water they use.
Sometimes traditional local water users are not even able to formalize their cus-
tomary rights due to the lack of the necessary capacities and resources. Conversely,
incoming investors are interested in formalizing the right to access and exploit
water resources. Therefore, when customary and formal water rights conflict, the
investors are in a better position to protect their rights before the law.
As observed earlier, very often, formal water rights are part of land deals that
grant the investor unrestricted or preferential access to water resources. These deals
normally do not put a price on water, nor do they provide for possible withdrawal or
renegotiation in case of a water crisis, so that traditional water users may be left
without secure access to water.
This happens when domestic laws, which are supposed to protect local users, are
weak or ineffective or are interpreted in a way that facilitates water grabbing. For
example, in Ethiopia, foreign investments are encouraged by a legal and policy
framework that promotes large-scale intensification of agriculture for food export
(by guaranteeing, for example, very low land rents for long periods).36 Although in
35
United Nations General Assembly (UNGA), Resolution 1803 (XVII), 14 December 1962, UN
Doc. A/5217, paras 1 and 3.
36
See Bossio et al. (2012) documenting foreign investment agreements and associated water use
changes.
principle domestic law ensures the sustainable use of water resources (e.g., by
stating that water resources are the common property of the Ethiopian people and
should be used in a manner that does not infringe any person’s legitimate inter-
ests37), its implementation is inadequate.38
Generally speaking, rights and guarantees to foreign water investors are regu-
lated under international investment agreements, which protect the investors
against the interference of the host State—by ensuring, for example, compensation
for expropriation and fair and equitable treatment. However, they usually do not
attribute the same amount of duties upon the investors, especially with regard to
universal and equitable access to water.39 These agreements, which in the water
sector have produced, among other things, a massive increase in water tariffs,
dispossession from water resources, and forced resettlements of local communities,
limit the State’s capacity to ensure the human right to water.40
A widely quoted example is Argentina, where several foreign investors, includ-
ing the French multinational Vivendi and the American water company Azurix,
have been awarded private concession contracts to provide urban water services.
Both these contracts, concerning the distribution of drinking water in conjunction
with sewage services, ended up in formal international legal arbitration before the
International Centre for the Settlement of Investment Disputes (ICSID), which
recognized a violation of the investment treaties and required Argentina to com-
pensate the counterparts.41 Both disputes—Vivendi and Azurix—originated from
the poor quality of water provided to consumers and the rising costs of water bills in
a general context of an economic crisis. In both cases, the State’s defense included,
unsuccessfully, the argument that the measures undertaken were necessary to
provide the population with safe, affordable, and accessible water.42 This is not
surprising. International investment treaties are typically designed to protect and
secure foreign investors without imposing public interest duties on them, which
normally pertain to the State and are excluded from the scope of the treaty. Only
occasionally can a general exception for public interest measures be included in the
body of the treaty.43 Therefore, in order to preserve their regulatory autonomy and
avoid interference in the exercise of national sovereignty over water resources,
37
See the Ethiopian Water Resources Management Proclamation (No. 197/2000) implemented by
Council of Ministers Ethiopian Water Resources Management Regulations (No. 115/2005), http://
faolex.fao.org/docs/pdf/eth44004.pdf. Accessed 12 September 2016.
38
See Seide (2016), Bossio et al. (2012) and Mousseau and Sosnoff (2011).
39
On States/foreign investor asymmetries see, among many, Sheffer (2011) and Chaisse and
Polo (2015).
40
Bordignon et al. (2016), Swyngedouw (2007) and Bluemel (2005).
41
ICSID, Case no. ARB/97/3, Award of November 21, 2000 16 ICSID Rev.—FILJ 641 (2001) and
Case no. ARB/01/12, Award of July 14, 2006, annulled on September 1, 2009, available at: icsid.
worldbank.org.
42
See Morgan (2006), pp. 228–234. See also Chaisse and Polo (2015).
43
See Condon (2014) who found that general exceptions for public interest have also begun to be
introduced in investment treaties.
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300 F. Spagnuolo
States should clearly address public interest regulations in the provisions of an

investment treaty or otherwise limit the scope of the treaty itself. In addition, due to
the fact that redistributive issues are also at stake—because international invest-
ment treaties can protect the (formal) rights of foreign investors against the (legit-
imate) claims of traditional local water users—the far-reaching implications of
these treaties should be carefully considered before entering into negotiations
with foreign investors.44
Water grabbers also largely use legal means to divert water from local users and
profit from local communities (e.g., by influencing governance processes or auto-
matically acquiring water rights by signing land deals). This occurs especially
where water tenure is surrounded by legally complex situations, in which formal
water rights may coexist and overlap with existing nonregistered, customary rights.
As a consequence of this blurred legal context, local users can emerge as illegal
users and lose or be deprived of their right to water (as happened, for example, in
Peru, in the above-mentioned case of the Yanacocha Mine).
3.2 Challenges for the Human Right to Water
Water distribution, diversion, and the variability of the water supply can result in
violations of several human rights in relation to water, including the right to
adequate standards of living, health, self-determination, housing, food, and—obvi-
ously—water.45 Although the right to access water is a precondition for survival
and the full enjoyment of other human rights, 663 million people still lack adequate
drinking water sources.46 Drinking unsafe water causes water-borne diseases,
which are responsible for nearly 900 child deaths every day, and impacts on the
socioeconomic well-being of millions of people, who are unable to attend school or
to work.47 Access to water is therefore a basic human need that cannot be denied. It
is also a fundamental human right, formally recognized by the General Assembly of
the United Nations and the Human Rights Council.48
44
Analogous considerations apply to international investment treaties in farmland, see
Cotula (2015).
45
See Art. 1, Art.12(1) and Art. 11(1) of the International Convention on Economic Social and
Cultural Rights.
46
UNICEF and WHO (2015).
47
UNICEF and WHO (2015) and WHO (2012).
48
United Nations General Assembly Resolution “The human right to water and sanitation”
(A/RES/64/292), adopted at the 108th plenary meeting, 28 July 2010 and Human Rights Council,
Resolution 15/9 “Human rights and access to safe drinking water and sanitation,” adopted at 31st
meeting, 30 September 2010. The human right to water is also recognized in several sectoral
conventions, such as the Convention on the Elimination of All Forms of Discrimination Against
Women (art. 14, para.2 (h)), the Convention on the Rights of the Child (art. 24, para. 2 (c)), and
others.
In 2002, the Committee on Economic, Social and Cultural Right released a

General Comment on “The right to water,” which states that “States parties [of the
International Covenant on Economic, Social and Cultural Rights—ICESCR] have
to adopt effective measures to realize, without discrimination, the right to water.”
According to the Committee, the right to water is embedded in Articles 11 and 12 of
the ICESCR, which specify a, not exhaustive, number of rights indispensable for
the fulfillment of the right to an adequate standard of living and the highest
attainable standard of health.49 Access to “sufficient, safe, acceptable, physically
accessible and affordable water” is required to realize these and many other
Covenant rights. For example, the Committee notes that ensuring sustainable access
to water resources for agriculture is fundamental in realizing the right to adequate
food.50 This implies, among other things, equitable and adequate access to water for
subsistence farming.51 More specifically, according to the Committee, States
should ensure that the allocation of water provides access to water for all the
population, including indigenous people and those living in rural areas.52
The Covenant imposes three general legal obligations on States:
1. the obligation to respect, which requires States to refrain from any practices or
activities that may limit or threaten the right to water (e.g., by interfering with
existing customary arrangements for water allocation);
2. the obligation to protect, which requires States to prevent public or private
entities from interfering with the enjoyment of the right to water (e.g., by
restraining water providers from denying individuals, or communities, equal
access to water);
3. the obligation to fulfill, which obliges the States to take the necessary measures
to ensure the full realization of the right to water (e.g., by adopting, and
implementing, legislative measures ensuring “sufficient, safe, acceptable, phys-
ically accessible and affordable water”).
Water grabbing, which deprives the affected people of the possibility to access
water resources, constitutes a direct interference with the right to water and can be
classified as a violation of the legal obligation to respect.53 This is typically the case
of those land deals that drive water grabbing.
When foreign private actors are involved in the provision of water services, as in
the case of bilateral international treaties, States parties should prevent them from
49
The International Covenant on Economic, Social and Cultural Rights was adopted and opened
for signature by General Assembly Resolution 2200A of 16 December 1966, which entered into
force 3 January 1976. At present, the Covenant includes 164 States parties.
50
Committee on economic, Social and Cultural Rights, Comment No. 12 on “The right to adequate
food (art. 11),” 12 May 1999.
51
See General Comment no. 15, para 7.
52
General Comment no.15, para 14.
53
See the Report of the Special Rapporteur on the human right to safe drinking water and
sanitation, Catarina de Albuquerque, “Common violations of the human rights to water and
sanitation,” adopted on 30 June 2014, A/HRC/27/55, p. 6 (hereinafter Report A/HRC/27/55).
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302 F. Spagnuolo
denying individuals, or communities, a sufficient quantity of water for personal and

domestic uses (which, according to the World Health Organization, should be
between 20 and 100 L of water per person per day54). Failure to protect the right
to water in the context of the provision of water services can be classified as a
violation of the obligation of the State to protect.55
Complaints concerning the violations of the right to water can be brought before
national courts or international human rights bodies such as the Committee on
Economic, Social and Cultural Rights.56 Individual and collective “communica-
tions” may also be addressed to the Special Rapporteur on the Human Right to Safe
Drinking Water and Sanitation on the basis of a special procedure intervening with
national governments.57 However, this procedure, like other similar reporting pro-
cedures in the context of social, economic, and cultural rights, produces only
“recommendations” (i.e., nonbinding documents), whose force lies in the political
pressure exercised on States (“name and shame” effect).58
Mechanisms for accessing the justice system in case of a violation of the human
right to water are more developed at national and regional levels, where cases
concerning the human right to water and sanitation have been decided before
several judicial and quasi-judicial bodies.59 In these cases, government decisions
have been scrutinized in order to determine their compliance with the human right
54
WHO (2003).
55
Report A/HRC/27/55, p. 9.
56
The United Nations General Assembly with the Resolution, “Optional Protocol to the Interna-
tional Covenant on Economic, Social and Cultural Rights,” A/RES/63/117, adopted on
10 December 2008 and entered into force on 5 May 2013, enabled the Committee to receive
and consider communications submitted by, or in behalf of, individuals or group of individuals,
claiming to be victims of a violation of any economic, social or cultural rights set forth in the
ICESCR. For a detailed overview of the role of the Committee in this regard, see Odello and
Seatzu (2014). More in brief, see Biglino and Golay (2013). For a general outline of the various
complaints procedures before Human Rights Bodies, see http://www.ohchr.org/EN/HRBodies/
TBPetitions/Pages/HRTBPetitions.aspx. Accessed 21 September 2016. Cases related to the human
right to water have been brought before, and decided by, the Human Rights Committee under the
First Optional Protocol to the International Covenant for Civil and Political Rights. In

AngelaPomaPoma v. Peru, for example, the Human Rights Committee (Communication
No. 1457/2006, Doc. CCPR/C/95D/1457/2006 of 27 March 2009) decided in favor of the
complainant, a member of the indigenous Aymara people, who had been deprived of their
traditional sources of water because of the diversion of water, decided by the Peruvian govern-
ment, from the Peruvian highland to a coastal city. For a detailed account of the case, see
G€ ocke (2010).
57
See Office of the United Nations High Commissioner for Human Rights, Special Procedures of
the Human Rights Council, Urgent appeals and letters of allegation on human rights violations,
http://www2.ohchr.org/english/bodies/chr/special/docs/communicationsbrochure_en.pdf. Accessed
21 September 2016.
58
Craven (1993), Drinan (2001), and Winkler (2012, 2017).
59
UN Special Rapporteur on the human right to safe drinking water and sanitation (2014)
(hereinafter UN Special Rapporteur on the HRWS).
to water and, where needed, to bring about the necessary measures to meet their
legal obligations.60
When the violation of the right to water is a consequence of water-grabbing
practices, what it is at stake is—very often—the collective right to water (as in the
case, for example, of indigenous communities that have lost access to water
resources because of land deals signed by the State with private investors61).62
However, although judicial and quasi-judicial mechanisms to identify and
address violations to the right to water exist both at national and regional levels,
the full implementation of the recommendations and decisions issued from these
bodies requires the active collaboration of national and subnational authorities.
Indeed, very often, judgements, and other decisions, remain a dead letter.63 The
same is true for the international level, where several bodies, including the Com-
mittee on Economic, Social and Cultural Rights, have developed follow-up mon-
itoring procedures aimed at verifying the correct implementation of their decisions.
However, as the UN Special Rapporteur Catarina de Albuquerque neatly puts it,
“the people whose human rights to water and sanitation are most likely to be
violated are rarely in the position to access complaint mechanisms.”64 Thus, not
only do States need to take appropriate and effective measures to eliminate current
barriers to access to justice, but they also need to adopt “transformative remedies”
aimed at correcting both the direct violations of the right to water and the structural
conditions behind these violations (e.g., patterns of discrimination and inequal-
ity).65 Furthermore, to comply with their international obligations, including those
arising from the Covenant on economic, social, and cultural rights, States need to
respect the enjoyment of the human right to water in other countries. This implies
that, both within and beyond national borders, States must refrain from activities
that threaten or otherwise interfere with the right to water, including land and water
grabbing.66
60
See UN Special Rapporteur on the HRWS (2014), p. 8, for an overview of cases in which courts
have adjudicated on the human right to water.
61
In this regard, see, for example, X akmokK asek Indigenous Community v. Paraguay, Inter-
American Court of Human Rights, Series C No. 214, 26 August 2010 and Comunidad Indigena
Sawhoyamaxa vs. Paraguay, Inter-American Court of Human Rights, Series C
No. 146, 29 March 2006.
62
On the right to water as a collective right, see Zolo (2005).
63
UN Special Rapporteur on the HRWS (2014), p. 52.
64
UN Special Rapporteur on the HRWS, p. 40.
65
Report A/HRC/27/55, p. 22.
66
See General Comment no. 15, p. 11, which also states “steps should be taken by States parties to
prevent their own citizens and companies from violating the right to water of individuals and
communities in other countries” (para 32, p. 12).
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304 F. Spagnuolo
Justiciability is central to putting the right to water into practice; however, a major
role is certainly played by national legislation. This is especially evident in devel-
oping countries (and particularly in Africa), where the lack of a strong national
legal framework for the right to water has favored water grabbing by foreign
investors, both private and public.67 Undeniably, where national legislation on
water rights is nonexistent or existing rules are weak and not well implemented,
investors are more incentivized to become water grabbers. Thus, the adoption of a
national strategy to realize the right to water and secure a “fair” allocation of water
resources among all users can help to limit grabbing practices.
A good starting point for such a strategy is to promote participatory local water
governance, by giving individuals and groups full and equal access to information
and decision-making processes regarding the use of water resources.68 This could
help in evaluating the social and environmental impact of land deals and other
investments that lead to water grabbing. To this end, several global and interna-
tional bodies have recently adopted guidelines and other documents to involve local
communities in decision making affecting land and water use (by “prior informed
consent” or other consultation procedures69).70 However, the consultation and
participation of local communities is not a panacea, especially when the involve-
ment of local actors only represents an “empty ritual,”71 and does not lead to
tangible results in terms of inclusiveness in decision making.72 In fact, by involving
local water users in decisions affecting the allocation of water resources, often
governments and investors seek to prevent opposition to the investment projects
(and related delays and costs) and gain consent from the affected communities by
means of “win-win” scenarios, in which (land and) water investments are also
presented as an opportunity for the targeted community.73
Although it is certainly positive to engage and seek the support of those who are
affected by decisions in relation to allocation and access to water resources, there is
not enough evidence of “win-win” scenarios in this sector.74 On the contrary, there
is growing evidence of the negative effects produced by large-scale (land and)
water acquisitions on local communities, in terms of people displaced; very few
67
Allan et al. (2012).
68
On participation in water governance see, among many, Bruch et al. (2005), Krchnak (2005),
Razzaque (2009) and Goldin (2013).
69
Franco (2014).
70
For example, Food and Agriculture Organization (2014) and International Finance Corporation –
World Bank Group (2012).
71
Scharpf (1997).
72
On the value of inclusiveness in democratic decision making, see Habermas (1996).
73
See, for ex., Von Braun and Meinzen-Dick (2009), arguing that, under certain conditions,
investments can provide key resources for agriculture.
74
In this sense, see HLPE (2011).
jobs created for farmers and rural people; and the overexploitation of water and
natural resources.75
Bearing this in mind, future research should further explore how access to water
resources is shared among competing uses (domestic, industrial, agricultural) and
how responsibilities are “glocally”76 allocated (i.e., from the global level to the
local level) in order to optimize resource use in a way that is compatible with the
full realization of the human right to water.
References
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The Regulatory Vicious Circle of Investment
Operations in Agriculture
Federica Violi
1 Introduction
Large-scale investment operations in land might represent a double-edge sword for

host countries, thus producing negative externalities on both their territory and
population. These investment contracts—often concluded under the auspices of
bilateral investment treaties (BITs)—usually grant both public (State-owned enter-
prises (SOEs) and sovereign wealth funds (SWFs)) and private investors a series of
incentives and guarantees. These clauses have the potential to incisively affect the
host States’ right to regulate, thus seriously constraining their capacity to exercise
sovereign powers on those areas subject to a land deal.1
Nevertheless, investment protection is sanctioned by host States’ consent to
contract and treaty provisions, which exempt investment activities in land from
practically any kind of State regulatory “interference”.
This circumstance highlights the tension between the obligation of host coun-
tries to honor investment commitments and the pursuit of their public interest, a
notion that might—with caution and under certain conditions—include interna-
tional human rights and environmental protection rules. For example, while
performing an obligation included in the BITs or in the contract, host States
might violate a binding human right provision, such as the right to food or land
rights. Equally, while implementing a measure complying with their human rights
obligations, host countries might violate the fair and equitable treatment standard or
1
The author has further analyzed substantive content of land investment contracts in Violi (2014),
pp. 105–136; and Violi (2015), pp. 17–37.
F. Violi (*)
Department of International and European Union Law, Erasmus School of Law, Erasmus
University Rotterdam, Rotterdam, The Netherlands
e-mail: violi@law.eur.nl

312 F. Violi
a stabilization clause, included in the investment contract. Therefore, host States are
likely to incur international responsibility on two different sides.
This is all the more evident when dealing with umbrella or stabilization clauses,
which are very common in BITs and land investment contracts, respectively. Both
these provisions strengthen investors’ safeguards and blur the distinction between
contract and treaty claims, thus lowering the threshold to hold a host State interna-
tionally responsible for a violation of the investment standard of treatment. The result
is that the regulatory framework governing foreign direct investments (FDIs) in
agriculture is composed of a series of international obligations that overlap, thus
creating a multilevel system of regulation, which is particularly difficult to untangle.
In the context of agricultural investments, the abovementioned clash between
investment and non-investment obligations has been linked to the so-called land
grabbing or race to land, which is generally understood as the phenomenon of large-
scale investments in land by either public or private investors for rather long terms
(usually ranging from 30 to 99 years) and in exchange for meager prices (around
$1.50 per hectare). Developing countries have implemented new regulations in order
to attract FDIs in land in the hope of enhancing economic growth and development.
While apparently entailing a “normal” exercise of permanent sovereignty of host
States over their natural resources, at a deeper analysis these land deals present
several ambiguities, in particular in terms of access to land and food supply.2
After analyzing some of the general features related to investment contracts and
the regulatory overlap that they are embedded in, the present study aims at
identifying different mechanisms of harmonization able to accommodate this
tension between human rights and investment agreements in the framework of
large-scale investments in land. Potential accommodations will be identified, recur-
ring to both public and private international law mechanisms. Hence, the aim is to
go beyond the traditional interpretation methods that are usually referred to recon-
cile investment and non-investment obligations.
The investigation will try to infer general conclusions from the analysis of
illustrative relevant contract clauses of the Convention between the Republic of
Cameroon and SG Sustainable Oils Cameroon PLC—a land investment contract—
and the corresponding 1986 BIT between Cameroon and the US.3
2
Plots of land subject to land investment contracts are often already used to accommodate crops or
animal herds of rural communities, whose rights are usually granted a lower level of protection
compared to formal titles of ownership. On this tension see also Cotula (2016), p. 177 et seqq. For
a more general overview of the implications of international investment law for the distribution
and governance of natural resources, see Vi~ nuales (2016), p. 26 et seqq.
3
SGSOC was a Cameroon incorporated company of the NY based Herakles Farms. The company
has come under the spotlight because of documented hazards and violations perpetrated both in
Ghana and Cameroon. Allegedly, Herakles has suspended its activities in the Mundemba and Toko
Subdivisions in Cameroon, although supposedly having a specific intension to intensify planting of
palms in the Nguti area (included in the Convention under analysis), despite previous judicial
ruling and ministerial orders. The latest news has reported a change in the proprietary asset of
SGSOC which was apparently acquired by a new company, willing to resume previous Herakles
projects in the contested areas. A governmental decree regarding a potential authorization for the
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The Regulatory Vicious Circle of Investment Operations in Agriculture 313
2 The Law Applicable to Land Investment Contracts
Investment contracts are the principal legal instrument that convey and regulate large-
scale investment operations in land; an analysis of their main features is therefore
useful to understand how contractual terms contribute to determine the effects briefly
outlined above and potentially lead to favoring the phenomenon of land grabbing.
The characterization of investment contracts is an extremely delicate operation,
considering, in particular, the nature of the subjects involved in the transactions and
the normative content of the agreements: the exact scope of the obligations included
in the contracts is not easy to identify. Many aspects—although fundamental,
considering the extent of the investment operation—are not covered, with the result
that transfers or leases of large-scale agricultural production areas are regulated by
laconic terms and vague commitments.
Furthermore, as already mentioned, land investment contracts are usually con-
cluded under the auspices of a BIT between the home and the host State, thus
adding a further layer of regulation to the investment operation. Hence, it seems
first of all necessary to analyze the general issues raised by these deals in order to
clarify how the different regulatory levels intersect in the execution, interpretation,
and breach of the contracts in question.
2.1 The Hybrid Nature of State Contracts
Transactions concluded between host States and foreign investors are usually
defined as State contracts,4 which are also the most common transaction type
regulating investments in land.
On a general level, in light of their peculiarities, State contracts can be consid-
ered as hybrid tools: the dual role of the State5 acting as both party to the contract
and sovereign legislator has boosted the debate on the appropriate regulation of
State contracts. The complications in finding an appropriate regulatory scheme are
apparent in a certain reversal in the traditional hierarchy: usually, economic entities
are subordinate to the State, which remains the sole holder of control over the
renewal of the lease was expected by November 2016, but apparently no relevant decision has
been issued so far. See http://farmlandgrab.org. Accessed 10 January 2017. Pending further—and
hopefully positive—evolutions, the author still thinks that these Convention terms serve as an
excellent example of the issues here discussed.
4
See, among others, Jennings (1937); Weil (1980), pp. 549 et seqq.; Lalive (1983), pp. 9 et seqq.;
Bowett (1988), pp. 49 et seqq.; Maniruzzaman (2001), pp. 309 et seqq.; Sornarajah (1990), pp. 3 et
seqq.; Sornarajah (2000), pp. 223 et seqq.; Leben (2003) pp. 201 et seqq.; Douglas (2010), pp. 38 et
seqq.; Sornarajah (2010), pp. 281 et seqq.; Voss (2011), pp. 14 et seqq.; Dolzer and Schreuer
(2012), pp. 30 et seqq.
5
Shan (2009), pp. 421 et seqq.
314 F. Violi
activities carried out in its territory. Applying the same hierarchical scheme is
particularly complex when the investor holds a number of contractual rights toward
the host State, both on procedural and substantive levels, being entitled to invoke
the host State’s responsibility before an arbitral tribunal.
Against this background,6 it should be emphasized that (1) the life span of the
contractual obligations is, in general, particularly lengthy, and (2) these agreements
mainly concern areas relevant to the public interest of the host State,7 which
officially concludes the agreement in order to promote economic development of
a particular sector.8
Moreover, the contract structurally aims at protecting the interests of both
parties, including, of course, the claims of the private party toward the host State.
This coexistence has the potential to generate tension between two different
priorities: the State tends (or should tend) to preserve the public interest at the
expenses of private parties, in contrast with the general contractual expectations of
stability and certainty of the private party. For this reason, the regulation of the
contract has elements of both public and private law, regulating different aspects of
the agreement.9
This duality between private and public law inevitably raises the question as to
what the most appropriate applicable law to govern State contracts is, essentially for
two reasons. First of all, the identification of the applicable normative order is a
sensitive issue, considering the dual role of the State, which, while being party to
the contract, wants to retain its sovereign powers; second is the willingness of the
investor to pick a foreseeable and stable system of law, possibly removed from the
6
Generally speaking, investment contracts related to the management or exploitation of natural
resources are considered deserving of special protection, given the extreme importance of this
sector for the very existence of the State in its territorial component. Taking this aspect into
account, many authors believe, indeed, that such contracts should contain specific provisions to
ensure that the State is able to fully exercise its sovereignty, without contravening contractual
obligations. See e.g. the proposal of Cotula on the drafting of a stabilization clause which meets
this criterion, with regard to the principle of sustainable development. See Cotula (2012b). On the
content of land deals see also Cotula (2012a).
7
See Sornarajah (2000), p. 241. According to the author, such contracts are ontologically incon-
sistent because of their dual commercial and public relevance, thus sometimes imposing the need
to sacrifice the certainty of the commercial expectations governed by the agreement, in the event
that they do not serve the public interest of the host State anymore.
8
The public relevance of these contracts is often reflected in the required previous parliamentary
authorization of the agreement, and in the presence of contractual clauses introducing a set of
performance requirements at the expenses of the investor. Performance requirements, in particular,
integrate certain conditions imposed on the investor for the admission of the investment or the
enjoyment of certain benefits, and are generally related to technology transfer duties, export
quotas, or hiring a certain number of workers. They are forbidden under the 1986
US-Cameroon BIT.
9
See Sornarajah (2000), p. 86.
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sovereign power of the host State.10 Furthermore, the investment operation is also
covered by the BIT, which raises the question of the applicability of international
law to investment contracts.
2.2 To What Extent Is the Reference to International Law

Legitimate at Contract Level?
Section 22.2 of the Convention between the Republic of Cameroon and SG Sus-
tainable Oils Cameroon PLC reads as following:
Governing Law. Section 22.2. This Convention (. . .) shall be construed and interpreted
according to the (Cameroonian) Law and by such rules and principles of international law
as may be applicable, particularly with regard to an investment by nationals of one country
in another country.
Usually, as in the case at hand, land deals select a domestic legal system (more
generally, although not necessarily,11 the host State law) as the applicable law
regulating contractual relations between the parties. Nevertheless, it is common, as
in our contract, that the choice of law clauses contemplated by investment contracts
include a reference to international law, along with domestic law. Therefore, it is
necessary to assess whether such a reference is valid at the contractual level,
especially in terms of normative effectiveness.
Scholars diverge on this point.
10
In an attempt to circumvent the supremacy of the State in the regulation of contracts, scholars
and arbitrators have made numerous argumentative efforts to justify the subjugation of these
agreements to a different legal order than the internal one. Scholars and arbitrators have tried to
elaborate theories that might justify a removal of investment contracts from the host State’s
domestic law application. Accordingly, State contracts would be regulated by external legal
orders, variously identified in international law, general principles of law or transnational law.
This is known by the term internationalization. There are varied theories at the basis of this
concept. It is possible to distinguish between direct and indirect internationalization of State
contracts, depending on the method they use to refer to international law as the applicable law:
(1) either by virtue of the immediate application proprio vigore of an external regulatory system—
where the contract finds its legitimization—or (2) through the professio iuris of contract parties,
who explicitly choose the application of an international or transnational legal system in confor-
mity to the criterion of party autonomy. On the origin of the phenomenon, see, among others,
Sornarajah (2010), pp. 223, 281 et seqq.; Kulick (2012). Among others see Mann (1959), pp. 34 et
seqq.; Weil (1969); Sacerdoti (1972); Giardina (1980/1981), pp. 147 et seqq.; Luzzatto (1987),
pp. 167 et seqq.; Lalive (1983), pp. 9 et seqq.; Leben (2003), pp. 197 et seqq.; Alvik (2012). See the
leading case Ad-Hoc Award, Kuwait v. the American Independent Oil Co. (Aminoil), 21 ILM 976.
In the international jurisprudence, see Serbian Loan Case, PCIJ, Series A no. 13, July 29, 1929,
where the PCIJ underlines that “Tout contrat qui n’est pas un contrat entre des E´tats en tant que
sujets du droit international a son fondement dans une loi nationale.”
11
See, e.g., the Contrat d’Exclusivité pour I’ Utilisation de Terre entre Agro Africa (Norvège) et
Kounkane, Sénégal, where the selected applicable law is French law.
316 F. Violi
The main counterargument is that international law, as a system designed to

regulate relations between States, cannot be used for the regulation of relationships
involving subjects that do not have international legal personality, such as foreign
investors. Moreover, a breach of these rules would entail the international respon-
sibility of the State for breach of contracts, and it would make it impossible to
characterize the consequences of a contractual infringement committed by the
private investor.
However, it seems that the complexity in the application of international law
lies, rather, in the inadequacy of this system of rules for State contracts. As already
mentioned, being ontologically intended to regulate relations between sovereign
entities—and not between individuals—it does not appear that international law has
developed to the point of providing a concrete set of rules designed to govern the
contractual relationship between a State and a private party.12
Thus, in this sense, the choice may not be valid; conflict of law rules oblige the
parties to select a legal system that allows the application of concrete rules to the
contract and the regulation of the underlying relationship, which is not so if
international law (broadly understood) is applied to the transaction. The substantial
shortfall of international law norms would leave an unacceptable discretion and
would not allow the parties to correctly identify the scope of their contractual
obligations.
Nonetheless, international law is often invoked in a vast number of State
contracts; therefore, it is necessary to ascribe a meaning to such reference in
order not to deprive it of any effect. The interpretation shall rely on the correct
relationship between domestic law and international law in the regulation of
investment operations. This will help us to properly understand which aspects of
an investment operation are regulated by domestic law and which are regulated by
international law. This analysis is fundamental to assess potential clashes and
identify solutions that respect the overall regulatory architecture of investment law.
2.3 How to Reconcile the Reference to International Law

in Investment Contracts Regulated by Domestic Law
Section 23.9 and 19.1 of the Convention under analysis read as follows:
Section 23.9. Investment treaty. To the extent not inconsistent with this Convention,
Government affirms that each Project Participant (. . .) shall enjoy the full benefits and
general guarantees set forth in the Treaty between the United States of America and the
Republic of Cameroon (. . .) signed at Washington D.C., on February 26, 1986.
12
See Luzzatto (1987), p. 177; Sornarajah (2000), p. 253; Giardina (1980/1981), pp. 160 et seqq.;
Crespi Reghizzi (2009), p. 30; Douglas (2003), p. 151.
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Section 19.1 Submission to Arbitration (a) Any dispute between Government and Investor
arising out of, in relation to or in connection with this Convention or its formation, or the
validity, interpretation, performance, termination, enforceability or breach of this Conven-
tion shall be settled by binding arbitration under the arbitration rules of the Centre on the
date hereof (the ICSID Rules). In the event of any conflict between the ICSID Rules and
this Article 19, the provisions of Article 19 shall govern.
The reference to international law in the applicable law clause is particularly

relevant when the investment contract is included in the legal system established by
a BIT treaty. According to some scholars, a BIT establishes a legal environment
that is composed of a heterogeneous set of juridical relationships where investors’
positions merge and are regulated partly by international law and partly by domes-
tic law.13 Consequently, it basically becomes a matter of understanding what
impact the treaty has on an investment contract, in particular, when the treaty
foresees a jurisdiction clause in favor of an international investment arbitration.14
In the event that a particular dispute deals with a breach of contract—once
verified that the arbitral tribunal has jurisdiction on the matter15—arbitrators should
identify the applicable law referring to the relevant conflict of law rules.
If the dispute is submitted to ICSID—which is common for State contracts—Art.
42 of the Convention will operate as a conflict of law rule,16 in so far as it provides
that
The Tribunal shall decide a dispute in accordance with such rules of law as may be agreed
by the parties. In the absence of such agreement, the Tribunal shall apply the law of the
Contracting State party to the dispute (including its rules on the conflict of laws).
This provision postulates an explicit reference to the lex contractus, already

selected by the parties. Furthermore, it adds a reference to general international law.
The assessment of such a reference in terms of adequacy or validity does not
exhaust, however, the necessity to assign a meaning to the choice of the parties in
referring to international law in the applicable law clause. As already mentioned,
this choice cannot be connected to the intention of the parties to ground the contract
within the international legal order: legal relationships governed by the contract
originate and operate on an interindividual level.17
The reference to international law must therefore be understood as an expression
of the parties’ intent to let the contract comply with international standards of
treatment of foreign investments: these rules contribute to defining the legal
environment established by the treaty under which the contract exists and operates.
13
See Crespi Reghizzi (2009), pp. 31 et seqq.
14
See Crespi Reghizzi (2009), p. 36.
15
The parties are free to refer contractual claims to arbitration tribunals, as well.
16
The interpretation of art. 42 ICSID has given rise to heated debates among scholars, see
extensively Douglas (2003), p. 192.
17
It is exactly this aspect which allows interpreting the first part of Art. 42 ICSID as a conflict of
laws rule.
318 F. Violi
Moreover, the need to ensure compliance with these rules is valid even in the
absence of a choice of law clause. In the event that parties have not selected any lex
contractus, the tribunal must apply the law of the contracting State “and such rules
of international law as may be applicable.”18 The reference to international law
should therefore be understood as a “general compatibility clause”19 of the con-
tractual arrangements with those international standards, which inform the legal
environment created by the BIT.
Part of the ICSID case law has interpreted the reference to international law
included in the applicable law clause as playing an integrative (besides a corrective)
function, capable of filling in potential host State law gaps and directly applying to
the contractual relationship between the parties. This hypothesis does not seem
acceptable, however, given the different scope of enforceability of the two regula-
tory systems, which entails a relation of nonfungibility between the two.20 While
participating in the legal environment established by the treaty, the two legal
systems shall maintain, in fact, a separate scope of application.21
Therefore, only a corrective function of international law within the context of
contractual disputes should be accepted. This kind of interpretation stems directly
from the consideration that the investment contract is included within the frame-
work of legal relationships instituted by the BIT; in the event that the host State’s
conduct complies with the lex contractus but violates the standards of treatment
imposed by the BIT, the function of Art. 42 ICSID is to guarantee that the tribunal
ensures compliance with the treaty rules so as not to compromise the effectiveness
and consistency of the entire legal environment established by the treaty. Interna-
tional legal order and domestic legal system concur to define the legal positions of
the investor toward the host State. Therefore, it seems reasonable to harmonize the
system through the corrective function of international law.
Scholars have argued that—to the extent that the analogy only serves an explan-
atory function—this translates into an arbitrators’ duty of “consistent interpreta-
tion” of the selected domestic law with respect to normative investment standards
imposed by the BIT. These are mainly related to the protection of the investor from
direct and indirect expropriation of its assets and rights, and a general respect of the
(vaguely defined) fair and equitable treatment, which is interpreted by arbitrators as
including stability and predictability of the legal environment and the protection of
the legitimate expectations of the investor.22
18
See Ziccardi (1946), whose reasoning is used by Crespi Reghizzi (2009), p. 26, to deny the
conflict of laws nature to the second part of Art. 42 ICSID.
19
Crespi Reghizzi (2009), p. 31.
20
Ibid., p. 33; contra Douglas (2003), who considers that, in the case of a contractual claim, the
reference to international law can perform neither a corrective nor integrative function.
21
See Liberian Eastern Timber Corporation v. Republic of Liberia (LETCO), ICSID Case
No. ARB/83/2, Award on the Merit 31 March 1986.
22
On the point, see Crespi Reghizzi (2009).
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This reasoning has helped us so far to understand how domestic law and
international law correctly apply and interact at the contractual level between the
host State and the investor.
While domestic law represents the primary legal system applying and regulating
investment contracts, the reference to international law provided in the choice of
law clauses or applicable law clauses (e.g., Art. 42 ICSID) has led us to assess how
far this reference is valid. Considering the scope of the international legal system
and its shortfalls when it comes to regulating investment contracts, its direct
application to contractual relations or an integrative function should be excluded.
The only function that international law might validly exert in contractual relations
is a corrective one, which guarantees the consistence and general compatibility of a
contract with the legal environment where the investment contract is embedded in,
via the recourse of a “consistent interpretation” like mechanism. Below, we will try
to explore whether this corrective function might be extended to other fields of
international law, which do not strictly pertain to investment law.
The next section will explore what the regulatory scenario is, in the case where
violation of a contract giving rise to a contractual claim simultaneously determines
the violation of an international norm protecting the investor, be it a customary law
rule or a provision included in a BIT, thus blurring the boundaries between the
contractual and the BIT levels.
3 Blurring the Lines: The Internationalization

of Investors’ Interests via Umbrella Clauses
and Stabilization Clauses
The 1986 US–Cameroon BIT Art. 2 c. IV (umbrella clause) reads as follows:

Each Party shall observe any obligation it may have entered into with regard to investment
of nationals or companies of the other Party.
As already mentioned, investment operations realized through State contracts

find simultaneous protection under the international rules relating to the treatment
of foreign investments, whether customary or treaty based. The fact that these
economic activities are integrated within a multinormative frame emphasizes the
heterogeneity of the legal relationships related to them, which are subject to
different rules. These, in particular, being part of different legal systems, contribute
to making the investment discipline a hybrid and fragmented area. As we have seen
so far, a bilateral investment treaty establishes a juridical environment wherein
some aspects of investor rights are regulated by international law and, for others, by
the lex contractus, which, as in this case, is the domestic law of the host State.
What happens, therefore, if a State implements a measure infringing an inves-
tor’s right?
In the case of a controversy arising from an investment operation, it will first be
necessary for the arbitrators to identify which norms should apply to the dispute
320 F. Violi
arising between the State and the investor. This kind of assessment requires taking a
preliminary step in order to characterize the dispute as either a contract or a treaty
claim. Hence, arbitrators will have to qualify the measure enacted by the host State,
to assess whether its conduct entails a violation of a normative standard, which is
either limited to the contract or included in a BIT, thus also raising the issue of the
international responsibility of the host country.23 The fact that a system established
by a bilateral investment treaty contains a jurisdiction clause, which allows bring-
ing a case before an arbitral tribunal, both for treaty and contract claims should not,
however, cast a shadow on the fundamental distinction between the two, which is
probably considered one of the most sensitive issues of international investment
law. The leading case on the subject is certainly the annulment procedure of the
Vivendi24 award, where the Ad Hoc Committee provided a set of criteria to
distinguish and define the different roles played respectively by international law
and domestic law in relation to an investment dispute. The Commission noted, in
particular, that treaty and contract claims remain subject to their own applicable
rules; thus, contractual disputes should be assessed applying domestic law, with
treaty disputes governed by international law.25
The characterization of an infringement must be assessed by first evaluating
whether the measure enacted by the State is in contrast with an international norm,
be it conventional or customary. Any other characterization based on the nature of
the violation caused by a host State’s measure, either jure imperii or jure gestionis,
has no relevance for the classification of an act as internationally wrongful.26
Although it is true that a breach of contract can simultaneously give rise to violation
of a treaty, an additional element is necessary for this to occur, a quid pluris, which
elevates the breach of contract to a violation of the BIT and, hence, to an interna-
tionally wrongful act. In other terms, the host State’s conduct has to contravene an
international law norm.
Nevertheless, this distinction between contract claims and treaty claims is not
always easy to assess, for a number of reasons.
23
On the distinction see Crawford (2008); Schreuer (2005), pp. 281 et seqq.; Gaillard (2005),
pp. 325 et seqq.; Sasson (2012), pp. 151 et seqq.
24
Compa~ nía de Aguas del Aconquija S.A. and Vivendi Universal S.A. v. Argentine Republic,
ICSID Case n. ARB/97/3, Award on the Annulment 20 October 2007.
25
The Permanent Court of Justice has already had occasion to rule in the case of the Serbian and
Brazilian Loans; the International Court of Justice emphasized in the Anglo Iranian Oil Company
case where a dispute arose as a result of the nationalization of the Iranian oil industry, that the
contract between the Iranian government and the company was nothing more than a concession
contract and that it could not be characterized as a treaty, see ICJ, Case Anglo Iranian Oil Co Case
(Kingdom v. Iran), July 22 1952, paras 84 et seqq.
26
See Dolzer and Schreuer (2012), pp. 142 et seqq.; Sasson (2012), p. 165. See also ICJ, ELSI
(United States of America v. Italy), 20 July 1989, para 73: “Compliance with municipal law and
compliance with the provisions of a treaty are different questions. What is a breach of treaty may
be lawful in the municipal law and what is unlawful in the municipal law may be wholly innocent
of violation of a treaty provision”.
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In fact, there are some situations where investors’ safeguards are strengthened
and the distinction between contract and treaty claims is blurred, thus lowering the
threshold to hold a host State internationally responsible for a violation of the
investment standard of treatment.
In particular, the introduction of umbrella clauses27 in BITs has cast a shadow
zone on the distinction outlined above, raising the question of a possible overlap
between contract and treaty claims.
The doctrinal and jurisprudential debate on the subject is vast. Suffice it to mention
a number of trends identified in the analysis of literature and practice. The effect of
umbrella clauses primarily derives from their drafting.28 These may contain a general
statement of intent by host States to undertake compliance of the obligations29
undertaken toward the investor or impose, instead, a specific obligation on the host
State to comply with “all the commitments entered into with the national of the other
State Party,” as in the case of the investment operation under analysis.
According to some scholars and arbitrators,30 umbrella clauses would imply that
a breach of contract is a treaty violation only if it is possible to verify that the parties
shared a similar intent when drafting the clause; this hypothesis lends itself to the
easy objection that such an interpretation is in sharp contrast with the effet utile
principle and the general criterion of interpretation pursuant to Art. 31 of the 1969
Vienna Convention on the Law of Treaties.
Another trend is to attribute a similar effect to the clause only in the event that
the violation results from the exercise of the sovereign authority of the State. In this
regard, see the above critiques related to the distinction between contract and treaty
claims through the use of the category of acta iure imperii and acta iure gestionis.
Finally, the extensive approach considers that the effect of an umbrella clause is
actually to equate a breach of a contractual provision to an internationally wrongful
act. In other words, umbrella clauses serve to introduce a provision into the system
established by the BIT that requires States to fulfill the obligations assumed in favor
of the investor through the conclusion of an investment contract; such provision is
not present in general international law.
In the event that there is an umbrella clause, the relationship between domestic
law and international law is altered; the lex contractus contributes to defining the
violation of the State as a proper legal assessment of host States’ behavior. The
breach of contract does not per se infringe international law; the violation occurs
27
On the origin of umbrella clauses, see Sinclair (2004), pp. 413 et seqq.; Voss (2011),
pp. 223 et seqq.
28
Extensively, Crawford (2008), p. 367.
29
See Art. 11 of the Switzerland-Pakistan BIT that due to its vague drafting caused the SGS
v. Pakistan dispute.
30
By virtue of the ambiguous wording of the umbrella clauses, the arbitral practice is extremely
fragmented and has produced contradictory awards. See SGS Société Générale de Surveillance
S.A. v. Islamic Republic of Pakistan, ICSID Case n. ARB/01/13, August, 6th 2003 and the
Philippines, SGS Société Générale de Surveillance S.A. v. Republic of the Philippines, ICSID
Case No. ARB/02/6, January 29th 2004.
322 F. Violi
because the breach of contract automatically enables the simultaneous violation of

the umbrella clause, even though no substantive treaty provision has been breached.
Nevertheless, the final effect is to increase the protection of the investors also for
State acts or measures, which would otherwise not be considered relevant by
international law.
3.1 The Strengthening of Investor’s Interests: An Analysis

of Prevalence and Stabilization Clauses
The relevant applicable law clauses within the contract under analysis include the
following sections:
Section 22.1 of the Convention Applicability of Cameroonian Law. (. . .) Investor shall be
subject to Law as in effect from time to time, including respect for labor, environmental,
health and safety, (. . .) and shall conduct itself in a manner consistent with Cameroon’s
obligations under international treaties and agreements, insofar as those have the effect of
the Law. Sections 22.2. (. . .) However, in the event of a conflict between this Convention
and any Law, except for the Constitution of Cameroon, in effect as of the date hereof, the
rights, obligations and duties of a Party shall be deemed to be those set forth in this
Convention(. . .).
Section 20.4 Change of Law. (a) If any Change of Law has the effect of impairing,
conflicting or interfering with the implementation of Investor Activities, or limiting abridg-
ing or adversely affecting the value of the Production Area or any of the rights(. . .)(i) take
all actions available to it to reverse the effect of such Change of Law upon Investor
Activities(. . .)The foregoing obligation shall include the obligation to take all appropriate
measures to resolve promptly by whatever means may be necessary, including by way of
exemption, legislation, decree and/or other authoritative acts, any conflict or anomaly
between this Convention or any Project Agreement and Law; or (ii) compensate Investor
for the present and the future Costs incurred by Investor as a result of the Change of Law
(. . .).
Although investment contracts usually refer to domestic law as the primary legal
system regulating transactions, there might be several negotiating terms that place
serious constraints on its effective enforcement and reinforce the investors’ posi-
tion, raising its safeguard to an international level. That is the case of prevalence
and stabilization clauses.
In the case at hand, Art. 22 introduces a clause of prevalence of the contract with
respect to “any Law” contrasting with the provisions of the transaction, with the
only exception of the Constitution of Cameroon (as in force at time of conclusion).
The clause has an interesting effect since it seems to alter the hierarchy of domestic
sources. The contract actually acts as a source of rights and obligations, which are
below the Cameroonian Constitution, yet above ordinary laws.
This circumstance highlights some risks with regard to (1) those national laws
implementing health, social, or environmental measures (only supposedly binding
the investor according to Art. 22.1 of the Convention) and (2) those international
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obligations binding the host State, which might respond to similar needs. In
particular, Art. 45 of the Constitution of the country foresees that duly ratified
international agreements have a hierarchical effect that is superior to ordinary laws,
without attributing, however, a constitutional value. It follows that if any contrac-
tual clause is in conflict with international treaties ratified by Cameroon,31 the latter
would probably succumb.
In other words, Art. 22 locks in the contract with some sort of hierarchical
“immunity.” Therefore, the clause would also overcome domestic mandatory rules
that do not necessarily have a constitutional value, yet are extremely important in
terms of the essential interests of host States. The purpose is to protect investors
against the risk that host State action could interfere with the investment activities
regulated by the transaction. Such provisions raise the level of protection recog-
nized to investors since they enhance the possibility for the investor to obtain
compensation for governmental actions, which, under international law, would
not give title to such claim.
The same goes for stabilization clauses. Section 20.4 provides a clear example.
This clause requires the host State to reverse the effect of any change of law that
might impact on the investor, either exempting him from respecting the new
legislative measure or compensating him for the costs of conforming to the
amended law.32 Thus, any interference that raises investment operation costs is
considered illegitimate. The presence of a stabilization clause materializes in the
strengthening of the investor’s legitimate expectations that are part of the fair and
equitable treatment standard, which is an international standard usually referred to
in the BIT. This means that the violation of a stabilization clause will most likely
imply a violation of a BIT standard of treatment. Such a mechanism is usually
connected to potential risks that these clauses put on the pursuit of the public
interest by the host State. The “regulatory chill” induced by stabilization clauses
translates into regulatory protection levels that are much lower than those actually
conforming to public purposes. The host State would most probably prefer not to
change its laws in order to avoid paying compensation to the investor.33 The
situation in which stabilization clauses enjoy coverage of umbrella clauses is
even more serious, resulting in further reinforcement of the legal effect thereof.
The Report conducted by the International Finance Corporation of the World
Bank and by the UN Special Representative to the Secretary General on Business
and Human Rights has classified stabilization clauses into three categories:
(a) freezing clauses, which de facto freeze the law applicable to the contract at
31
Cameroon has ratified a number of human rights treaties, among others the 1966 New York
International Covenant on Civil and Political Rights and the International Covenant on Economic,
Social and Cultural Rights.
32
Crespi Reghizzi (2009), pp. 47 et seqq. The author has further analyzed this issue in Arcuri and
Violi (2017).
33
See Cotula (2006), pp. 111 et seqq.; Stern (2011), pp. 221 et seqq.; Paasivirta (1989), pp. 315 et
seqq.; Leader (2006), pp. 658 et seqq.; Kinsella and Comeaux (1994), pp. 20 et seqq.; Bertoli and
Crespi Reghizzi (2013), p. 43.
324 F. Violi
the moment of its conclusion, and limited freezing clauses, which cover only some
of the regulatory activities of the host State; (b) economic equilibrium clauses,
which require the investor to comply to the new rules introduced by the host State
but allow him to claim compensation for the costs of compliance; (c) hybrid
clauses, which could be described as a sort of prescriptive requirement for the
restitutio in integrum or take the form of opt-outs from the application of the new
rules introduced in the host country.
Freezing clauses have also been interpreted as provisions that do not affect much
the host State’s right to regulate and implement measures for the pursuit of
legitimate public interests but rather as provisions affecting the jurisdiction of
arbitrators or tribunals to rule a particular case under the applicable law in force
at the time of the dispute. In other words, by introducing a freezing clause, contract
parties replace the domestic law applicable to the investment operation with a
system of rules that is crystallized at the time of the transaction and has no
autonomous legal value. In fact, those rules governing the contract might even
not be in force anymore at the time of the dispute.
Scholars have questioned whether stabilization clauses are legal tout-court. We
will see below how the detrimental effect of stabilization clauses might be limited.
The relevant aspect to retain for now is that these clauses put serious constraints on
the ability of host States to pursue their public interest, which, to a certain extent,
might lead to the violation of other international law obligations that States might
have toward their population. This circumstance triggers the question of whether
international law in general, or other specific fields of international law, might play
a role in the regulation of investment operations.
4 The Impact of General International Law on Investment

Operations
In the previous sections, we have tried to retrace the applicability of international

law to a dispute arising in relation to an investment operation. This has helped us
understand how domestic law and international law correctly apply but also what
those cases are where the line between contract and treaty claims becomes signif-
icantly blurry. Umbrella and stabilization clauses, in particular, are those tools that
usually produce this kind of haze. Their detrimental effect on the pursuit of public
interest on the part of the host State has spurred doctrinal and arbitral reflection on
the possibility that host State conducts conforming to investment contracts and BIT
might simultaneously be regulated by other international law rules, either custom-
ary or treaty norms, which do not strictly pertain to investment. In order to properly
assess this eventuality, it will be necessary to investigate whether, and to what
extent, other international rules—different from those prescribing certain standards
of investment protection—can find any leeway of application in investment
operations.
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The proliferation of treaties for the protection and promotion of investments has
raised the issues of (1) the relationship between international investment law and
international law and (2) the position of the former within the international legal
system. The question can easily be included in the broader debate on the fragmen-
tation of international law.34 It is well known that the difficulties arising from the
progressive diversification of international law have been brought to the attention of
the International Law Commission, which indicated a series of criteria to ensure the
harmonization of different areas of international law in its Report of 2006,35
resorting, in particular, to the principle of systemic integration in the interpretation
of treaties, clearly relevant to the issue at hand.36
The field should immediately be cleared of the assumption that international
investment law represents a self-contained regime,37 isolated from natural
interrelational dynamics of the international legal system: investment treaties
arise in the international order and are regulated by this normative system.38 The
relationship with general international law can be defined as symbiotic39: this
circumstance does not impose a relation of identity between general international
law and the rules contemplated by BITs. What is meant by this is rather that the
content of investment treaty obligations is inspired and framed within general
international law.
It could be useful to clear up some confusion between jurisdiction and applicable
law that has arisen in the matter. The jurisdiction of arbitral tribunals is limited only
to those issues that the parties have conventionally agreed to refer to them through a
dispute resolution clause, precisely designed to circumscribe the extent of a
34
On the debate related to fragmentation and self-contained regimes, see Simma (1985) pp. 111 et
seqq., Dupuy (2007) pp. 1 et seqq.; Conforti (2007), pp. 5 et seqq.; Pauwelyn (2003), pp. 193 et
seqq.; Treves (2008), pp. 823 et seqq.; Howse (2012), pp. 427 et seqq.
35
International Law Commission, Fragmentation of International Law: Difficulties arising from
the Diversification and Expansion of International Law, Report of the Study Group of the
International Law Commission, UN Doc A/CN.4/L682 (ILC Fragmentation Report), UN Doc
A/CN.4/L702, (ILC Fragmentation Conclusions). See McLachlan (2008), pp. 36 et seqq.
36
It should, however, be specified that the conclusions reached by the Commission have been
subject to much criticism, see in particular Conforti (2007), pp. 8 et seqq. Although some
assessments appear unembraceable, the work of the ILC presents, nevertheless, an added value,
which resides mainly in having drawn up a set of guidelines for the composition of normative
antinomies, adopted by the generality of the States. See Treves (2008), p. 843.
37
See Simma and Pulkowski (2006), pp. 483 et seqq.; Simma (2011), p. 576.
38
In the context of an ICSID arbitration, the Tribunal has emphasized the continence relationship
between the BIT and international law: “Furthermore, it should be noted that the Bilateral
Investment Treaty is not a self-contained closed legal system limited to provide for substantive
material rules of direct applicability, but it has to be envisaged within a wider juridical context in
which rules of other sources are integrated through implied incorporation methods, or by direct
reference to certain supplementary rules, whether of international law character or of domestic law
nature. Such extension of the applicable legal system resorts clearly from Article 3.(1), Article 3.
(2), and Article 4 of the Sri Lanka/U.K Bilateral Investment Treaty,” Agricultural Products Ltd
(AAPL) v. Republic of Sri Lanka [1990] ICSID Case n. ARB/87/3, para 21.
39
McLachlan (2008), p. 364.
326 F. Violi
tribunal’s jurisdiction exclusively to certain matters. This limitation, as to the type

of disputes that an arbitration tribunal can hear, depends on the scope of the
arbitration clause.40 The latter does not, however, prescribe the tribunal what
rules are to be applied to the matters brought to its attention. Arbitral tribunals
are therefore free to determine what rules are applicable to the proceedings. In the
case of the ICSID Convention, it is specifically Art. 42 that requires the arbitrators
to apply “such rules of international law as may be applicable.”41 In particular, it
should be pointed out that reference to international law is carried out in its entirety,
including, of course, customary law rules.42 As said, however, the issue cannot be
entirely solved in the mere transposition of general international law into a BIT
dispute. When dealing with the issue, arbitral tribunals must refer to instruments
concerning the interpretation of treaties43 regulated by Arts. 31–33 of the 1969
Vienna Convention on the Law of Treaties, which arbitrators are obliged to comply
with. The application of customary law in the context of a treaty obligation does not
automatically proceed through the identification of general international law as the
law applicable to the treaty: integration must, in fact, be conveyed, in primis, by
way of interpretation of the treaty, embracing, in particular, the instructions
provided by the ILC in the field of systemic integration.
Article 31 (3) (c) of the Convention is particularly useful since it imposes the
interpreter to take into account any relevant rules of international law applicable in
relations between the parties. According to a common view,44 the operating leeway
of this rule covers two sides, positive and negative, referring respectively to (1) the
possibility of integrating the rules of general international law into the BIT—in the
event that an issue is not governed by the treaty obligations—and (2) in a general
presumption of conformity pursuant to which the parties to the BIT did not intend to
contravene other rules of general or previously undertaken conventional interna-
40
McLachlan (2008), p. 370; Treves (2008), p. 857; Reiner and Schreuer (2009), pp. 82 et seqq.
41
This is also the case of the 2012 US Model BIT, Art. 30, which refers to the rules of international
law or other international instruments, such as NAFTA and ECT, respectively in Articles 1131 and
26.
42
See MTD Equity Sdn Bhd. & MTD Chile S.A. v. The Republic of Chile, ICSID Case n. ARB/01/7,
para 61–62: “MTD’s claim is one for ‘an alleged breach of any right conferred or created by this
Agreement with respect to an investment by such investor’ (BIT, Article 6(1)(ii)), and thus
International law as the proper law of the BIT is applicable to that claim and to any defence
thereto. The Respondent insists – and the Claimants do not disagree – that the Tribunal had to
apply International law as a whole to the claim, and not the provisions of the BIT in isolation. 62.
For its part the Tribunal also agreed. It said: [F]or purposes of Article 42(1) of the Convention, the
parties have agreed to this arbitration under the BIT. This instrument being a treaty, the agreement
to arbitrate under the BIT requires the Tribunal to apply international law.”
43
See McLachlan (2005), pp. 279 et seqq.
44
See McLachlan (2008), p. 371.
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tional norms when they concluded the BIT, unless the treaty specifies the opposite
intention in a language expressly indicating the contrary.45
The application of these rules, as already stated, is not intended to overturn treaty
obligations; it must comply with the exegetical method imposed by Arts 31–33:
therefore, the rules referred to must be relevant with regard to the petitum; in other
words, they must be fundamental in assisting the interpreter in the interpretation of
the BIT norms, which always remain at the center of the investigation.
Similar considerations can be made with respect to the relationship between
international investment law and another normative corpus, which is extremely
relevant in the management of investment operations, namely human rights law.
4.1 The Relationship Between Substantive Investment Law

Provisions and Human Rights
The US Letter of Submittal, Annex to the 1986 US–Republic of Cameroun BIT,

reads as follows:
The BIT’s definition of “expropriation” is broad and flexible; essentially “any measure”
regardless of form, which the effect of depriving an investor of his management, control or
economic value in a project may constitute an expropriation requiring compensation equal to
the “fair market value.” Such compensation, which “shall not reflect any reduction in such fair
market value due to the expropriatory action,” must be “without delay,” “effectively realiz-
able, freely transferable and bear current interest from the date of the expropriation. . .”(. . .)
Thus, the Parties agree to accord investments “fair and equitable treatment” and “full
protection and security” in no case “less than that required by international law.” It specifically
(. . .) restricts the right (of host States) to impose performance requirements(. . .).
The discourse related to the relationship between international investment law

and other fields of international law is usually connected to the clash between
investment protection, as displayed in the BIT cited above, and human rights at the
international level. Human rights law and investment law are generally perceived as
two sets of rules inherent to quite distinct matters: the former relating to the
protection of individuals in the human sphere,46 the latter to the standard of
treatment reserved to individuals as legal persons in the economic sphere.47 The
45
The reference to general international law is particularly useful in the context of BITs for the
applicability of those norms which shape the general functioning of the international legal order,
since they often consist of a list of primary norms. BITs leave certain matters governed by
secondary rules unsettled, in the field, for example, of international responsibility. On this point,
it is worth specifying that internationally wrongful act provisions shall apply to the responsibility
of the State in general, whether it arises in relation to another State or if the beneficiary is not a
sovereign entity, but a private investor.
46
On the origins and distinctions between the two sectors, see Dupuy (2007). In the specific
context of land grabbing see Opel (2016).
47
The pervasive impact of BITs in the context of State’s public interest has led some authors to
question the need to counteract this influence, thus ensuring appropriate opportunities for civil
society to have access to justice; see Francioni (2009), pp. 729 et seqq.
328 F. Violi
considerations made on self-contained regimes and fragmentation related to general

international law are, therefore, also relevant with regard to the potential impact of
the rules for the protection of human rights on investment disputes.
The structural difference between international investment law and human rights
has led several arbitrators to lean automatically toward existing contractual or
conventional agreements, without considering the possible substantive arguments
in favor of integration between investment and non-investment obligations.48 In
any case, even if arbitrators do ascribe relevance to these norms, tension is usually
resolved only ex post, namely merely in the award related to the eligibility and
extent of the title of the investor to claim adequate, prompt, and effective compen-
sation for the detriment of his rights, in case of State measures adopted for reasons
of public interest.49
This might discourage host States to intervene in favor of the public interest.
The example provided by the wording of the definition of expropriation within
the Annex to the BIT regulating the Cameroon contract proves illustrative. The
language is so broad and unconditional that it basically covers any kind of conduct
on the side of the host State that might affect the investor or its investment, by
merely altering the economic value of the investment. In the case of large-scale
investments in land, this might, for example, materialize in a governmental require-
ment to change the harvesting method after it turns out to be detrimental for the
aquifer underneath the land, thus posing a threat to the health of those people living
off that water. For this reason, it is useful to identify a strategy to harmonize
investment and non-investment obligations in order to make them compatible and
help the State maintain the right margin of action for the enforcement of human
rights obligations that it is committed to.50
The starting point is that reference to international law is carried out in its
entirety51; human rights norms, if relevant, may therefore apply in arbitration
proceedings. However, as anticipated, it is necessary to consider how such a
relationship can be resolved in the case of conflicting obligations. In primis, those
rules protecting fundamental human rights, which are granted the status of jus
cogens, require the provisions of the bilateral investment treaty to be in accordance
to these rights; otherwise, the BIT is invalid, pursuant to Art. 53 of the Vienna
Convention on the Law of Treaties.
48
See Reiner and Schreuer (2009), p. 85. On the reluctance of arbitral tribunals toward invok-
ing human rights see UNCTAD, Selected Recent Development in IIA Arbitration and Human
Rights, IIA Monitor No.2, International Investment Agreements, 2009, pp. 3 et seqq.
49
On this point, it is important to distinguish between regulatory takings and police powers: only
the former give right to adequate compensation.
50
See Phoenix Action Ltd v. Czech Republic [2009] ICSID Case, n. ARB/06/05. According to the
tribunal “investment protection should not be granted to investments made in violation of the most
fundamental human rights.”
51
The reference made to the substantive corpus of international norms should be understood
pursuant to Art. 38 (1) of the Statute of the International Court of Justice, see Gaillard and
Banifatemi (2003), pp. 397 et seqq.; Dupuy (2007), p. 25 et seqq.
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At an interstate level, similar purposes can also be achieved by including

harmonization rules already within the BIT, thus ensuring consistency between
the two sets of norms, for example through the incorporation of specific standards
of protection52 in the field of health, environment, or working conditions, thus
making them immediately applicable to an investment dispute.
Furthermore, it should be reaffirmed that investment treaties cannot be
interpreted in a legal vacuum since they constitute a body that forms part of the
international legal order. Such integration becomes possible through careful use of
the requirements dictated by Art. 31(3) (c): first of all, the invoked external norm
must be identified in its precise application scope in order to determine to what
extent this rule can be used to interpret the treaty; secondly, the substantive legal
relation between the human right norm and the BIT provision has to be proved in
order to assess whether the former has interfered with the investment dispute or
could affect its development.53
It is an evaluation that should be conducted on the single case in point; in any
case, the goal is to interpret, and not to change, the scope of a treaty provision.
To the extent that these requirements have been met, it is necessary to explore
how the interaction operates correctly. The problem is not trivial, given the impact
determined by long-term investment operations, particularly on the full enjoyment
of economic and social rights,54 the protection of which the majority of States are
committed to in accordance with the New York 1966 International Covenant on
Economic, Social, and Cultural Rights.
According to some authors, the relationship between these two sets of rules is
reflected in the tendency toward two distinct objectives: on the one hand, for the
investor to correctly identify the political risk he takes with the investment and the
correlative prices with respect to expectations of market capitalization55 and, on the
other hand, for the State to maintain an adequate level of regulatory power that
enables it to fulfill its international human rights obligations.56
To ease this tension, with particular reference to the obligations to protect social,
economic, and cultural rights, Art. 31 (3) (c) may prove useful—as long as the
52
This is the case of the Canada Model BIT, Art. 11 (Health, Safety and Environmental Measures)
and of US 2004 Model BIT, Art. 12 (Investment and Environment) and Art. 13 (Investment and
Labour).
53
See Dupuy (2007), p. 59; Simma (2011), p. 585.
54
Simma (2011), p. 578.
55
For the expectations of the investor to be considered legitimate, the arbitrators shall take into
account the knowledge he was supposed to have with regard to the human rights obligations of the
host State, which could affect the conduct of the latter, see Dupuy (2007), p. 55.
56
See Simma (2011), p. 582, in which the author refers to the risk of a potential regulatory chill of
the host State in the implementation of the necessary measures to comply with its human rights
obligations.
330 F. Violi
relevance requirement is fulfilled—in inspiring the characterization of concepts

such as “public purpose”,57 with respect to the distinction between police powers
and indirect expropriation; furthermore, the “necessity and urgency”58 condition
could be interpreted as a criterion that encompasses the respect of the minimum core
obligations of the States; finally, the requirement of “non-discrimination”59 against
an individual investor may be interpreted in the light of the CERD, which foresees
the possibility that the principle might suffer from some exceptions in specific
cases.60
In other words, in the event that the State is able to prove that the relevant human
rights effectively impact on the implementation of the disputed investment opera-
tion, the tribunal has to consider these allegations and try to rule in such a way as to
be able to reconcile the two conflicting norms, thus protecting the public interest of
the State, without squeezing the rights of the investor in a disproportionate manner.
It is, however, necessary to reiterate that this operation is an interpretative
process, which obviously cannot alter or distort the wording of the provisions
covered by the BIT. In the case of competing obligations, which cannot be
harmonized, the State will have to decide whether to comply with one or the
other, thus anyway incurring in international responsibility, as already seen above.
It would, therefore, be more useful to resort to other interpretative arguments or
harmonization mechanisms capable of conveying the protection of human rights,
without employing Art. 31(1)(c). These will be explored in the next section, which
will deal with accommodation mechanisms at the international and contractual
levels, respectively.
57
See for example Mondev International Ltd v. United States of America, ICSID Case n. ARB
(AF)/99/2, Final Award, October, 11th 2002.
58
On this point, the practice of arbitral tribunals is quite controversial, see e.g. LG&E Energy
Corp.at v. Argentina, Decision on Liability, ICSID Casen. ARB/02/1, October, 3rd 2006; LG&E
Energy Corp.at v. Argentina, Award, ICSID Case n. ARB/02/1 July, 25th 2007.
59
On this point see Simma (2011), p. 586. According to the author, the comments and reports of
HR monitoring bodies can be used as guidelines to correctly identify the relevant content of the
obligations of States.
60
See, in particular, Art. 1(4), which ensures respect of the beneficial measures, integrating
positive discrimination in favor of certain groups, which cannot be classified as acts of racial
discrimination, in the arbitration practice; see Piero Foresti and Others v. The Republic of
South Africa, ICSID Case n. ARB (AF)/07/1, Award, August, 4th 2010.
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5 Beyond the 1969 Vienna Convention on the Law

of Treaties? Harmonization Mechanisms at
an International Level
As already mentioned, arbitration practice has not drawn much on the described
interpretation mechanism; however, arbitrators have not forgotten to consider the
question of the normative conflict briefly outlined here. In particular, tribunals have
sought to achieve a similar result by acknowledging the right of host States to
introduce legislative adjustments or governmental measures for the pursuit of
public interest, without subjecting such actions to the payment of any
compensation.61
Beyond systemic interpretation, the issue becomes the correct assessment of the
limits of host States’ exclusive sphere of competence, which legitimates sovereign
entities to adopt measures to protect certain public interests. It should be added that
human rights require more from the host country than a mere deferential respect, by
imposing a positive obligation on States to act in order to protect those individuals
affected by the economic activity carried out by private companies on their
territory.
In the area of international investment law, the concept closer to the human
rights duty to protect can be identified in the positive exercise of the “host State’s
right to regulate” or “police powers,” as an inherent element of States’ sovereignty.
In an attempt to identify a fil rouge, it might be useful to provide an initial
definition of police powers that is not tautological but rather substantive.
Police powers are understood to be the host State’s exclusive sphere of compe-
tence for the pursuit of legitimate public interest policies to protect the environ-
ment, safety, or health of its territorial community62; these measures—while
placing restrictions on the rights of investors—if legitimately adopted, are not
subject to compensatory rules since they embody the normal exercise of the host
State’s right to regulate. It is therefore a matter of connecting the concept of police
powers to the protection of human rights while carefully considering whether, in
each single case in point, it is possible to functionally link the need to pursue a
public objective with the safeguard of a specific human right. A balancing between
investors’ rights and the pursuit of public interest could then be assessed through a
proportionality test,63 which might lead to a more effective outcome than mere
recourse to Art. 31(3)(c), thus better defining what the exclusive sphere of State
intervention is and what the limits are.
The application of the proportionality test responds, among others, to an exercise
of interpretation in good faith of the BIT. It is sufficient to think of the object and
purpose of bilateral investment agreements: the ultimate goal is to promote
61
For this approach, see Crema (2013), pp. 66 et seqq.
62
Ibid., p. 18.
63
See Kingsbury and Schill (2009); Yannaca Small (2004); Newcombe (2005), pp. 1 et seqq.
332 F. Violi
economic and social development through the liberalization of investment and a

reliable domestic and international regulatory environment. An interpretation of
treaty provisions that prevents the host State from acting in pursuit of essential
public purposes would run in stark contrast to the pursuit of the objective of the
treaty, in breach of Art. 31 of the 1969 Vienna Convention on the Law of Treaties.64
The balancing should be carried out according to specific criteria. The assess-
ment of proportionality can be broken down into subprinciples: the principle of
suitability, the principle of necessity, and the principle of proportionality strictu
sensu.
The first tends to establish whether, in the first place, State measures pursue a
legitimate interest; it requires a causal relationship between State measures and the
objective pursued. The principle of necessity requires instead the evaluation of
alternatives that could be less incisive on the affected investors’ rights yet equally
effective and reasonably practicable.
The last subprinciple prescribes the arbitrator to find a balance between the
effects of State measures on the interests of the investor and the importance of the
public purpose—according to a cost-benefit model—certifying a number of factors,
such as the degree of interference and duration of the interference of the measure, to
avoid the risk of excessive restriction with respect to a negligible public purpose.65
In this sense, it seems useful to recall the recent ruling Tecmed v. Mexico;
although the tribunal categorized State intervention as expropriation, it considered
it necessary that
there must be a reasonable relationship of proportionality between the charge or weight
imposed on the foreign investor and the aim sought to be realized by any expropriatory
measures,
arguing that an exception inspired by the exercise of police powers is perfectly

compatible with the rules designed to protect the investor from expropriation since
the principle that the State’s exercise of its sovereign powers within the framework of its
police power may cause economic damage to those subject to its powers as administrator
without entitling them to any compensation whatsoever is undisputable.66
64
See Newcombe (2005), p. 46, who believes that risks of investment operations fostering
underdevelopment should be totally borne by the investor.
65
See Kingsbury and Schill (2009), p. 32.
66
Téchnicas Medioambientales Tecmed S.A. v. Mexico ICSID Case n. ARB(AF)/00/2, Award,
May 29th, 2003 paras 119, 122.
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6 The Relevance of Human Rights in Contract Claims:

Harmonization Attempts at a Contractual Level
As mentioned earlier, in the case of contract claims, international law can find
automatic application when incorporated into the applicable domestic law by way
of adoption or, in the event that the relevant legal system is inspired by monism, via
recognizing primacy to international law over the internal legal system.
Before the contract is concluded, the investor should therefore verify interna-
tional human rights norms, included in domestic law, which may affect the appli-
cation or interpretation of contractual provisions.67 On the other hand, bona fide, the
State has the obligation to indicate to the investors those international obligations
that might have an impact on the implementation of the contract, especially when it
regulates public interest issues, as in the cases of large-scale investment deals.68
In the event that the dispute is either regulated by a domestic court or brought
before an arbitral tribunal, it will be necessary to take those international norms
already incorporated in the applicable law into consideration since they are an
integral part of the lex contractus.
In arguing their decisions, domestic courts will have the obligation to implement
the protection of those human rights that are part of the applicable law; when
encountering antinomies with other internal norms, courts should deal with the
antinomies in accordance with those rules related to the hierarchy of sources
belonging to the relevant domestic legal system.69
When a contractual claim is assessed by an arbitral tribunal and the applicable
law is not the law of the host State, those domestic rules protecting the public
interest of the host country might still find an application leeway.70 It is well known
that private international law allows the judges of a given State to apply those rules
of the lex fori that are known as mandatory norms or lois de police to a dispute
regulated by a foreign applicable law and materialize the fundamental interests of
that State. The competence of international arbitral tribunals is not grounded in a lex
fori, which provides the limit to the implementation of private international law
techniques. Nevertheless, arbitrators have started deferring to mandatory rules of
host States and the public interests they protect.
There are mainly two reasons for this trend: the first one relates to the hybrid
nature of State contracts and the dual role of the host State in concluding these
67
For the relevance of the knowledge of the investor of the host State’s regulatory environment and
its impact on legitimate expectations, see Tecmed SA v. Mexico, ICSID Case n. ARB (AF)/00/2,
Award, May 29th, 2003.
68
See Dupuy (2007), p. 60.
69
Most contemporary constitutions contain a list of rules related to the protection of fundamental
rights of human beings.
70
See on that Bertoli and Crespi Reghizzi (2013), p. 35, where the authors refer to international
mandatory rules, which might incorporate regulatory measures adopted by the host State in the
fields of e.g. tax, environment or labour conditions.
334 F. Violi
agreements. While being one of the negotiating parties, the host country still acts as
a “vehicle” of public interests, which are also incorporated within an investment
contract. The second reason relates to the fact that the host State’s law constitutes
the nearest legal system to the investment contract, the locus where it is
implemented, and where it exerts its effects. Mandatory norms contribute to
defining the legal environment of the investment operation and impact both on
the conduct of the host State and its performance of contractual obligations.71
Reasoning otherwise, the risk would be that those very public interests—which
represent the purpose for the host State to be bound by an investment
contract—might suffer a detriment, instead of being enhanced.
Nevertheless, as we have shown in the previous sections, specific contractual
clauses could prevent mandatory norms from functioning since contract terms are
placed above domestic law either through prevalence or stabilization clauses. The
latter clearly limit the application of national rules contrasting with the investment
contract, even if they are attributed the nature of mandatory norms within the host
State’s law. Therefore, different mechanisms should be elaborated in order to avoid
a potential detriment of public interests.
This is valid especially for stabilization clauses.
According to some scholars, stabilization clauses would not be compatible with
the principle of permanent sovereignty of States over natural resources.72 However,
the opposite doctrinal trend tends not to question the validity of such clauses since
they would indicate an exercise of permanent sovereignty rather than a
waiver thereof: host States are anyway free to choose what conditions apply to
the use and exploitation of their natural resources.73 Hence, the validity of such
clauses would derive its binding effect from an obligation freely assumed by the
State. However, it should not be overlooked that, while engaging in acts that are
private in nature, through contractual provisions, host States do not give relief to
interests that are exclusively commercial. The fact that host countries exercise their
power of managing natural resources does not allow them to ignore other interests,
related, in particular, to the full exercise of their police powers for the pursuit of
public purposes. The State is a unitary entity. Its powers of management should not
clash with those international obligations that the host State has to comply with as a
sovereign entity. Similar considerations should not be excluded from the contrac-
tual regulation tout court. However, arbitrators tend to be less lenient when the host
State has made specific commitment in terms of stability of its legislation.74
Scholars have recently suggested a different interpretation of stabilization
clauses, which might better conform to human rights obligations. According to
the civic approach to investment contract,75 given the mandatory content of
71
See Giardina (1982), p. 682.
72
See Sornarajah (1981), pp. 187 et seqq.
73
See Luzzatto (1987), p. 174.
74
See Revere Copper v. Overseas Private Investment Corporation (OPIC), Award August
24th, 1978.
75
Leader (2006), p. 628.
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permanent sovereignty—which implies the obligation for the State to exercise its
sovereign powers in the light of the promotion of the well-being of its people—the
effect of “petrification” clauses should extend only to those matters that do not
impact on the human rights enjoyed by the people of the host country. Affected
people, in particular, should be categorized as third parties to the contractual
relationship between the State and the investor and, as such, holders of rights that
should not be infringed by the negotiating activity of the State.
Beyond the strict and formal contractual relationship between the host State and
the investor, these investment contracts imply a triangular relationship with other
subjects. Hence, contracts should not include provisions that might exert negative
effects on third parties and undermine the host country’s obligation to the full
realization of human rights of the beneficiaries.76
The argument does not a priori question the validity of stabilization clauses, but
rather their legitimate scope. In other words, this approach introduces a sort of
“humanitarian exception,” thus circumscribing the effects of “petrification” pro-
visions, so that they cannot be extended to the point of jeopardizing the realization
of the human rights impacted by the investment operation.77
In the same vein, it is in this author’s opinion that the irreversible transfer of the
host State’s control over natural resources to private investors seems rather illegit-
imate; the alienation of sovereign powers is an impossible subject in a private
contract and therefore it is not likely to be transacted. The stabilization clause might
then well be considered valid—resorting to the effet utile doctrine—to the point
where it does not realize a definitive dismissal of host States’ police powers.
Another mechanism to induce the protection of public interests in the form of
human rights at the contractual level might be the recourse to the corrective
function of international law. As it was already mentioned in the sections above,
in the case of a contractual dispute, international investment law does not directly
apply as the lex contractus; it rather performs a corrective function, operating as a
general clause of compatibility of the domestic law with the BIT. It might be argued
that this could also include other norms of international law, besides international
investment law, provided that they are relevant to that specific dispute.
As already mentioned, such a function is based on the need to ensure coherence
and effectiveness in the system established by the BIT. In the case where an
external norm interferes with the entire investment environment, it might be used
to interpret the relevant BIT norms, according to Art. 31 (3) (c) of the 1969 VLCT.
This means that when resorting to the corrective function of international law, the
compatibility test will take into consideration the BIT provisions as systematically
interpreted in light of other relevant international law norms and, thus, potentially
convey the protection of human rights within a contractual dispute. Finally, on a
76
77
See, in this context, the 2003 BTC Human Rights Undertaking, which involves a unilateral
(binding) commitment of the BTC consortium not to interpret the contractual stabilization clauses
in such a way as to prevent the pursuit of environmental protection and human rights.
336 F. Violi
more evolutionary note, several tribunals, both internal78 and arbitrational,79 have
placed an interesting obstacle to the full execution of a State contract conflicting
with fundamental human rights: the existence of an international or “transna-
tional”80 public policy, which would invalidate an investment contract and preclude
the tribunals from hearing disputes arising out of the transaction, when the latter
infringes on fundamental rights.
7 Conclusions
The hybridism of State contracts as private instruments regulating public interests

has a significant impact on their regulation. Large-scale investments in land do not
constitute an exception in this regard. Quite on the contrary, the extent of natural
resources involved in these contracts and the duration of the deals represent
worrisome elements regarding those constraints that host States might perceive
when they want to intervene to safeguard their population.
While contractual aspects of investment operations are disciplined by (domestic)
applicable law, contracts are, at the same time, mostly planted within a bilateral
investment treaty. The latter should in principle only govern those host States’
conducts that are relevant to the international rules included in the BIT and, hence,
merely apply to treaty claims arising out of the investment operation.
However, we have seen that this distinction is not always so clear-cut.
First of all, choice of law clauses and applicable law clauses within arbitration
rules of procedure (e.g., Art. 42 ICSID) often refer to international law as applicable
law to investment contracts. The validity of a direct application of international law
to contractual relations between the State and the investor is, however, question-
able. We have tried to identify a possible way to reconcile the wording of these
clauses with the correct relevance of international law to contractual claims, which
we have recognized in what scholars define as the “compatibility clause.” In other
terms, international law might only exert a corrective function, thus guaranteeing
that contractual claims and contractual conducts of host States are assessed in a way
that conforms to the more overarching legal environment generated by the BIT. An
integrative function, and hence a direct application of international law at a
contractual level, is to be excluded.
Furthermore, in certain circumstances, these two regulatory levels are blurred by
specific provisions, namely umbrella clauses and stabilization clauses, which
78
According to some Italian courts, the provision of Art. V (2) (b) of the 1985 New York
Convention on the Recognition and Enforcement of Foreign Arbitral Awards relates to interna-
tional public policy.
79
ICC Award No 1110, January 15th, 1963 and Work Ltd v. Republic of Kenya, ICSID Case
n. ARB/00/7, October 4th 2006, both related to corruption.
80
On the grounds of a transnational public policy, see Lalive (2009).
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“internationalize” State conducts that would otherwise remain at the contractual

level. The main consequence is that host States might be more easily considered
internationally responsible for their conducts. This generates the so-called regula-
tory chill effect, by which States tend not to intervene in the public interest of either
the environment or their population in order not to be subject to an arbitration
procedure for having violated the BIT, via the effect of either umbrella or stabili-
zation clauses.
The fact that violation of human rights standards might occur when host States
conform to international investment law has triggered the question of whether
investment operations are also regulated by international law, in general, and,
human rights law, in particular, and how they might reconcile via a systemic
interpretation ex Art. 31 (3) (c) VCLT. While Art. 31 (3) (c) is still considered as
an interesting and valuable tool, we have tried to explore other mechanisms that are
able to accommodate human rights obligations and investment obligations, both at
a treaty and contractual levels. Thus, at a treaty level, we have looked, among
others, at how the notion of the host State’s right to regulate has been interpreted so
far and how police powers might be reconnected to the category of human rights
and be enshrined within the idea of public interests in the framework of
proportionality.
At a contractual level, we have focused mainly on the possibility that the
corrective function of international law might extend also to other fields, which
do not pertain to international investment law but are still relevant to the execution
and implementation of the investment contract. At the same time, we have consid-
ered how international law might be applied as part of domestic law after it has been
incorporated within the host State’s legal system and how private international law
mechanisms might contribute in guaranteeing the application of those mandatory
norms that safeguard the fundamental public interest of the host State.
The proper composition of the different regulatory levels governing investment
operations requires a thorough analysis and systematization of diverse sources of
law. While traditional methods of accommodation might still prove useful and
provide interesting insights in terms of correlation and interaction among different
fields of international law, it seems that other mechanisms might be more effective
in protecting host States’ public interests. Private international law seems particu-
larly relevant in this regard: while it has been (rightly) maintained that its political
neutrality might have contributed to the detrimental consequences of foreign
investment activities (privatization of sovereignty), it is important to explore its
potential in addressing the global governance challenges, through the inclusion of
substantive policies (HRs, environmental matters) within some of its most repre-
sentative tools, such as the public policy clause or mandatory rules.81
81
Muir Watt (2015), pp. 1 et seqq.
338 F. Violi
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Leader S (2006) Human rights, risks and new strategies for global investment. J Int Econ Law 9
(3):657–705
Leben C (2003) La théorie du contrat d’Etat et l’evolution du droit international des
investissments. In: Recueil des Cours de L’Academie de La Haye. Brill/Martinus Nijhoff,
Leiden, pp 197–386
Luzzatto R (1987) Illecito Internazionale. In: Le droit international a l’heure de sa codification,
Etudes en l’honneur di Roberto Ago. Giuffrè, Milano, p 167 et seqq
Maniruzzaman AFM (2001) State contracts in contemporary international law: monist versus
dualist controversies. Eur J Int Law 12(2):309–328
Mann FA (1959) The proper law of contracts concluded by international persons. Br Yearb Int
Law 35:34–57
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Convention. Int Comp Law Q 52(2):279–320
Mclachlan C (2008) Investment treaties and general investment law. Int Comp Law Q 57
(2):361–401
Muir Watt H (2015) The relevance of private international law to the global governance debate. In:
Fernandez DP, Muir Watt H (eds) Private international law and global governance. Oxford
University Press, Oxford, pp 1–22
Newcombe A (2005) The boundaries of regulatory expropriation. ICSID Rev – Foreign Invest-
ment Law J 20(1):1–57
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Menschenrechtsschutz und Investitionsschutzrecht. Duncker & Humblot, Berlin
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Yearb Int Law 60:315–350
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Between Customary and Statutory Tenure:
Understanding Large-Scale Land Acquisitions
in Zambia
Margherita Baldarelli
1 Introduction
Although at the world level agriculture accounts for less than 1% of foreign direct
investment (FDI),1 the past 10 years have seen a growth in FDI in agriculture in the
global South.2 After decades of neglect, investors increasingly view agriculture as a
profitable and growing sector with appealing yield opportunities. In the global
South, where mechanized agriculture is underdeveloped and the agricultural sector
accounts for a substantial share of GDP and employment,3 this renewed interest
may bring about opportunities for economic development and poverty alleviation,
together with substantial profits for investors.4
1
UNCTAD (2015) FDI by sector.
2
Ibid. Data on FDI in agriculture suffer from significant limitations since the two main datasets,
namely Unctad (www.unctadstat.unctad.org) and FDIMarket (http://www.fdimarkets.com), do not
include all countries worldwide. In the case of UNCTAD, data on FDI in agriculture are only
available for 44 countries. Moreover, the number of countries for which data are available varies
across years. A critical assessment of the existing datasets on FDI in agriculture can be found in
Lowder and Carisma (2011).
3
Agriculture, value added (% of GDP), World Development Indicators 2015, http://data.
worldbank.org/indicator/NV.AGR.TOTL.ZS. Accessed 1 June 2015. Employment in agriculture
(% of total employment), World Development Indicators 2015, http://data.worldbank.org/indica
tor/SL.AGR.EMPL.ZS. Accessed 1 June 2015.
4
It is important to note that in the global South official development assistance to agriculture has
steadily decreased: Hallam (2011). Moreover, the availability of credit for commercial agriculture
is limited, Liu (2014). As such, FDI has become a crucial tool to promote agricultural investment
in the global South.
M. Baldarelli (*)
School of International Studies, University of Trento, Trento, Italy
e-mail: margherita.baldarelli@gmail.com

342 M. Baldarelli
In light of this development potential, in the global South many governments

have introduced investment policies that provide tax and other fiscal incentives to
the agricultural sector.5 Foreign investors are encouraged by corporate tax holidays,
favorable import duty regimes for agricultural inputs, and other agricultural export
incentives.6 By means of national investment agencies, many governments promote
their agricultural potential abroad and actively seek suitable investors.
Land is pivotal to this equation. The availability of land for agricultural devel-
opment is the physical precondition for foreign investment in agriculture. In the
case of mechanized agriculture, large tracks of arable land are needed to make the
investment profitable due to economies of scale.7
Simultaneously, land is deeply embedded in rural societies and represents the
main source of livelihood in the global South, where the majority of population
lives in rural areas.8 Because of the allocation of land to foreign investors, local land
users face the risk of dispossession and displacement. In this event, the develop-
ment opportunity brought about by foreign investments may in effect result in the
impoverishment of rural communities. The mitigation of this risk is one of the tasks
of land management institutions at the national level, which are designed to ensure
that decisions over the use of land benefit the country and its people.
Consequently, land management poses several challenges in the global South.
The colonial encounter profoundly shaped domestic land tenure systems by impos-
ing European notions of private property and contract over different legal experi-
ences.9 As a result of complex historical and ongoing transformations, land tenure
systems consist of a plural web of norms that encompass local customary rules,
state legislation, colonial ordinances, and international law.10 In between the nodes
of this normative web, the actors involved in land transactions—i.e., local land
users, foreign investors, government agencies, and traditional leaders—have
5
Konig et al. (2013).
6
The typology of incentives varies across countries. The full set of incentives to foreign investors
is generally enumerated in the investment guides produced by national governments and special-
ized agencies. See for example Zambia Development Agency (2013).
7
The relative productivity of large-scale and small-scale agriculture and their development
potential have been extensively discussed in the literature and are beyond the scope of this chapter;
for a concise account of the debate, in which the authors argue that small-scale agriculture is key to
poverty reduction, see Hazell et al. (2007).
8
Rural population (% of total population), World Development Indicators 2015, http://data.
worldbank.org/indicator/SP.RUR.TOTL.ZS. Accessed 1 June 2015.
9
See, for example, Menski (2006), pp. 380–392.
10
Legal pluralism should not be understood as a specific feature of postcolonial legal systems.
Contemporary approaches to legal theory have overcome the rigid positivist understanding of law
as a body of written norms, and have emphasized that law is a multifaceted concept that varies
across contexts and includes all the experiences that social actors identify as ‘legal’, Tamanaha
(2008), p. 396. Moreover, the increased role of international law-making organizations has
introduced a further normative order in national legal systems, Berman (2007). As such, countries
of the global North experience legal pluralism as well, although in ways that differ from the
postcolonial context.
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Between Customary and Statutory Tenure: Understanding Large-Scale Land. . . 343
different types of access to resources and therefore different abilities to influence

the outcomes of the transactions. The normative uncertainty that derives from the
coexistence of different and sometimes contradictory norms may be used as a tool
in this process and reproduce the asymmetries at play among the actors. Under these
asymmetric conditions, the win-win situation in which both investors and rural
communities benefit may not materialize.
A closer analysis of recent agricultural investment flows and of related land
transactions reveals the centrality of sub-Saharan Africa since 70% of all large-
scale land acquisitions take place in this region.11 According to the Land Matrix,
since 2000, more than 37 million hectares have been acquired by foreign investors
in sub-Saharan Africa.12 Among the key recipients of land-based investments are
Mozambique, Ethiopia, Ghana, Tanzania, and Zambia.13 Many studies have scru-
tinized this phenomenon and provided useful insights into its multifaceted dimen-
sions; the majority of scholars have adopted a critical approach to large-scale land
investments and have increasingly challenged their developmental potential by
focusing instead on the forcible nature of the land acquisitions, which have been
popularly termed as “land grabs.”14
Many authors have focused on the consequences of large-scale land investments
by looking at their livelihood and environmental impacts,15 whereas others have
assessed them in terms of compliance with international human rights law.16
However, few studies have focused on the legal process through which agricultural
investments unfold in the receiving countries.17 Although underrepresented in the
vast literature on large-scale land investments, this aspect is crucial: the processes
through which foreign investors access land directly influences the distributive
outcomes of these transactions and can therefore shed light on the consequences
of the increased acquisition of land.
11
Deininger and Byerlee (2011). It is important to note that there is no agreement on the data
concerning large-scale land acquisitions; a critical discussion on the weaknesses of existing
datasets and their implications for current research can be found in: Edelman (2013) and
Oya (2013).
12
The Land Matrix Global Observatory, Get the Idea, http://landmatrix.org/en/get-the-idea/dynam
ics-overview/. Accessed 1 June 2015. The Land Matrix is a global observatory on land that
provides a database on land investments. Data are constantly updated thanks to the contribution
of both partner institutions and users. For an analysis of strengths and limitations of the Land
Matrix database, see Anseeuw et al. (2013).
13
The Land Matrix Global Observatory, Get the Detail by Target Country, http://landmatrix.org/
en/get-the-detail/by-target-country/. Accessed 1 June 2015. The enumeration above is based on the
number of large-scale land acquisitions reported in each country.
14
See for example Cotula (2013), White et al. (2012) and Zoomers (2010).
15
See among others Cotula et al. (2011), Dell’Angelo et al. (2017), Oberlack et al. (2016),
Schoneveld et al. (2011) and Vermeulen and Cotula (2010).
16
See for example Claeys and Vanloqueren (2013), Künnemann and Monsalve Suárez (2013) and
De Schutter (2011).
17
See German et al. (2013) and Nolte (2014).
344 M. Baldarelli
To date, large-scale land acquisitions have been especially scrutinized with a

geographical focus on some of the top recipient countries such as Ethiopia, Tanza-
nia, and Mozambique,18 due to the joint pressure of civil society campaigns and
academic research. Zambia—one of the key recipients of land-based investments in
the sub-Saharan region—has not yet received the scholarly attention it deserves.19
Since the colonial era, the extractive industry has been the backbone of the
country’s economy: at the time of independence, the mining sector alone accounted
for almost 50% of GDP.20 Notwithstanding the importance of mining, agriculture
currently employs 70% of the population.21 The Government of Zambia is actively
pursuing an agricultural development policy to reduce reliance on mining, and in
the past 10 years foreign investment in agriculture has grown significantly.22 As
such, it is very important to scrutinize the process through which large-scale
agricultural investments unfold in Zambia. The questions that this study addresses
are as follows: how do foreign investors access land in Zambia? How are large-
scale land investments implemented throughout the country? In the practice of land
investments, who are the actors that benefit from them, and how?
This study is based on a review of legal documents and literature and on
ethnographic research conducted between January and March 2015. The author
conducted a total of 31 semi-structured interviews in Lusaka and in the rural
districts of Serenje and Mumbwa, located in the Central Province, and Kazungula,
located in the Southern Province, in which large-scale land investments had been
identified. Key informants included legal experts, government and international
organizations officers, civil society organizations members, traditional leaders, and
international investors. In each of the three rural districts, ongoing large-scale
investments were analyzed, and a focus group discussion with affected community
members was held. Official documents and data on foreign agricultural investment
were also collected and analyzed.
This chapter proceeds as follows. The first section introduces the key features of
the Zambian land tenure system by looking at the history of the country. The
agricultural investment trends are then briefly discussed, followed by an analysis
of the process through which land is alienated to investors based on both existing
literature and field research. In particular, the focus is on investments that take place
on customary land. The third section problematizes the evidence from the field and
18
These countries have been included in numerous studies on large-scale land acquisitions, such
as: Cotula et al. (2014), Cotula (2011) and Zoomers and Kaag (2014).
19
Notable exceptions are: Chu (2013), German et al. (2013), Honig (2012), unpublished and
Nolte (2014).
20
Saasa (1987).
21
Employment in agriculture in Zambia (% of total employment), World Development Indicators
2015, http://data.worldbank.org/indicator/SL.AGR.EMPL.ZS. Accessed 1 June 2015. Data on
employment in agriculture in Zambia are only available for the years 1990, 1998, 2000, and 2005.
22
Pledged agricultural investments, 2004–2015, Zambia Development Agency (unpublished data
obtained in Lusaka on 25 January 2015).
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is followed by some concluding remarks on the challenges that large-scale land

investments pose in Zambia.
2 From Colonial to Contemporary Zambia: A Tale of Two

Land Tenure Systems
Prior to assessing the current state of land acquisitions, it is important to provide a

brief historical overview. The encounter between the British administration and the
local population dates back to the late nineteenth century. The current territory of
Zambia, which includes the former protectorates of North Eastern and North
Western Rhodesia,23 was initially administered by the British South Africa Com-
pany, which—by means of concessions whose legality is arguable—obtained from
local chiefs the right to extract minerals in the region.24 No express provision was
made with regard to land ownership, but the Company de facto controlled the
natural resources of the two protectorates until 1924, when the Devonshire agree-
ments transferred control over the territory to the Governor of Northern Rhodesia.25
2.1 The Roots of the Contemporary Tenure System: Land

Tenure in Northern Rhodesia
The first legal document to regulate land ownership in colonial Zambia was the
1928 Northern Rhodesia (Crown Lands and Native Reserves) Order in Council.
This order is crucial to the understanding of contemporary land tenure in the
country, as it introduced the dual system that, mutatis mutandis, is still in place
today. The British administration aimed to encourage white settlements in the area
and therefore guaranteed the availability of land to settlers by confining natives
within designated reserves. The Order classified land into two categories: native
reserves and Crown lands, a residual category encompassing all the land not
expressly reserved to natives. This dual classification of land was reflected in the
dual legal regime that regulated land: Crown lands were held under the common
law of freehold and leasehold, whereas native reserves were managed according to
local customary law.
23
The two protectorates were unified in 1911 by the Northern Rhodesia Order in Council, which
created a single political unit and confirmed its administration by the British South Africa
company, Mudenda (2007), pp. 350–365.
24
The British South Africa Company obtained concessions from the Lozi King in the Southern and
Western Province, in exchange for revenues and military protection, Scott (2006).
25
The Devonshire agreements were signed by the British South Africa Company and the Secretary
of State for the colonies in 1923, Mudenda (2007).
346 M. Baldarelli
The Order resulted in the forced displacement of natives to the designated

reserves as Crown lands could only be alienated to white settlers. Native reserves
were demarcated in areas that were far from the capital Lusaka, from the mineral
resources that were extracted at the time, and from the railway line that had just
been built.26
After the 1928 Order, it soon became clear that reserves could not suffice to the
needs of natives and that simultaneously Crown land was in excess of the needs of
settlers. Native reserves were overcrowded due to the displacement of natives from
Crown land, and large portions of them were not suitable for human settlements due
to the lack of water sources. Moreover, most of Crown lands had not been alienated
since the flow of settlers to Northern Rhodesia was smaller than expected.27 The
colonial administration addressed these issues at first by designating new reserves
through the Northern Rhodesia (Native Reserves) Supplementary Order in Council
1929 and then by introducing a new land policy in 1942. The new policy, which was
implemented by the Northern Rhodesia (Native Trust Land) Order in Council 1947,
created a third category of land, trust land. Similarly to native reserves, trust lands
were regulated by African customary law and were to be used by natives but could
also be leased to nonnatives. Trust lands covered more than 50% of land in
Zambia28 and thus expanded significantly the size of land available under custom-
ary tenure.
2.2 Between Change and Continuity: Land in Independent

Zambia
The dual land tenure system, which encompassed separate but coexisting statutory
and customary rights, went almost unchanged through the decolonization process.
At the time of independence, the architecture of the land tenure system was kept
intact, and the colonial orders remained in full force. However, some changes were
necessary to adjust the legal system to the independence of the country and to divest
the British Crown from its ownership of Zambian land. Therefore, in 1964, two
orders vested all the land in the President of Zambia and preserved the existing
categories of land while at the same time renaming Crown land into state land.29
The independent government confirmed the duality in the regulation and
26
For an account of these historical developments, see Mvunga (1980). An excellent analysis of
the dualism that the colonial power introduced in Southern Africa and of the creation of the
“bifurcated state” can be found in Mamdani (1996).
27
Mudenda (2007), pp. 351–975.
28
Brown (2005), p. 84.
29
These changes were introduced by the Zambia (State and Native Reserves) Order 1964 and the
Zambia (Trust Land) Order 1964. For a detailed analysis of the land reforms introduced after
independence, see Mudenda (2007), pp. 377–403.
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Fig. 1 Geographical distribution of customary and state land in Zambia (Brown 2005, p. 83)
administration of land, so that state land remained subject to statutory law, and
specifically to common law, and reserves and trust land to local customary law and
under the custody of traditional authorities. At that time, 94% of land fell in the
customary domain since it was demarcated as reserve or trust land, and a mere 6%
was state land (Fig. 1).30
In the period that followed independence, the country’s sole party, the United
National Independence Party, guided by Kenneth Kaunda, pursued a socialist
economic policy that in 1975 led to the nationalization of land. As a response to
numerous instances of land speculation throughout the country, President Kaunda
announced that all the freehold titles to land were to be abolished and converted into
100-year leasehold titles.31 Introduced through the Land (Conversion of Titles) Act,
this change aimed simultaneously to undermine the marketability of land and
strengthen its use value, in line with the idea that “land was never bought. It
came to belong to individuals through usage and the passing of time.”32 Accord-
ingly, the Act reaffirmed that all the land was vested in the President on behalf of
Zambian citizens and abolished the sale of land.33 The reform was supplemented
with a provision contained in the 1985 amendment to the Act that restricted the
transfer of land to foreigners.34 The new acts centralized all decisions over land in
the President as they required his approval for all land transactions.
30
Bruce and Dorner (1983).
31
Adams (2003).
32
Kenneth Kaunda, quoted in Mudenda (2007), p. 379.
33
1975 Land (Conversion of Titles) Act, Preamble and Section 4.
34
The reform was introduced by the 1985 Land (Conversion of Titles) Act (Amendment).
348 M. Baldarelli
2.3 The Transition to Democracy and the 1995 Land Reform
The absence of land markets was one of the key elements that the International
Monetary Fund (IMF) and the World Bank (WB) later identified as a weakness in
the country’s planned economy.35 After poor economic performance in the 1970s,
which was mostly due to the fluctuation of copper prices in the international market,
the government was compelled to request financial support from the IMF and
World Bank and as well enter into the first structural adjustment program in
1976.36 Among the policy prescriptions that accompanied the loans was a land
reform that aimed to liberalize land markets and reduce the control of the President
over land transactions. In the late 1980s, the country entered a slow and peaceful
transition to multiparty democracy; land reform was at the core of the political
manifesto of the Movement for Multiparty Democracy (MMD) that won the 1991
elections.37
It is in this context that the 1995 Lands Act, which remains in force today, was
passed by Parliament with the objective of liberalizing the land market and
streamlining land administration. After a heated national debate,38 the Act intro-
duced several novelties in the land tenure system, while at the same time
reaffirming the dualism between statutory and customary tenure that originated
during colonialism, by unifying trust and reserve lands in the new category of
customary land, governed by customary law.
In order to fully understand the changes brought about by the Lands Act, it is
crucial to understand the difference in the management of state land and customary
land. As envisioned first by the British and later by the independent government,
state land was intended for private use and protected by private property rights
initially and by long-term leasehold rights after 1975. Governed by statutory law,
state land was—and still is—mostly located in urban and peri-urban areas. A title
deed issued by the Commissioner of Lands, the delegate of the President for the
management of land, certifies the rights of the leaseholder on it.
Customary land, which represents the bulk of land in the country, is in contrast
governed by customary law and administered by traditional leaders at the local
level.39 All the land of the country, both the state and customary one, is vested in the
President, but the use of customary land is subject to rules that are generally not
written and vary significantly across the 73 Zambian tribes. Each tribe reproduces
norms that balance private and communal use rights in different ways, but a
common feature lies in the important role of traditional leaders, who are in charge
35
Brown (2005).
36
Ibid.
37
Adams (2003).
38
Ibid.
39
Mudenda (2007), pp. 759–782. The 1965 Chiefs Act regulates the power of traditional rulers and
it provides that they perform their functions under customary law unless it conflicts with the
Constitution or other laws (1965 Chiefs Act, Section 10(1)(a)).
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of the allocation of customary land throughout the country.40 Although customary

land is susceptible to private use, it is not possible to obtain title deeds over it since
it falls under the jurisdiction of customary law and therefore outside the realm of
state norms that regulate title deeds.
Because of their different characteristics, customary and state land cannot be
disposed of in the same way. State land can be alienated by the title holder, and a
new title deed is subsequently issued by the Commissioner of Land on behalf of the
President.41 On the contrary, customary land cannot be sold as it serves the needs of
the community as a whole, and, according to customary law, it is intended to
support future generations as well.42 Therefore, customary land is not a commodity
that can be sold freely on the market since it is regulated by laws that differ from
those of demand and offer. As mentioned above, the majority of land in the country
is classified as customary and therefore cannot be exchanged on the market due to
its characteristic and the norms that regulate it.
In line with the prescriptions of structural adjustment programs, the push to
liberalize the economy required the creation of a free market for land. However, the
nature and characteristics of customary land prevented its full-fledged marketability.
For this reason, the 1995 Lands Act introduced new provisions concerning the
conversion of tenure43 that allow for the transformation of customary land into state
land in order to physically expand the land market in the country. By following an
administrative procedure, customary land users can apply for conversion of tenure and
obtain a leasehold title from the Commissioner of Land.44 The conversion of tenure is
not only available to customary land users: according to the Lands Act, the President
can alienate customary land to foreign investors, by first converting it into state land.45
40
The literature on African land law has highlighted the multi-faceted nature of customary tenure.
Whereas most scholars have noted that customary tenure is inherently communal, others have
emphasized that individual land rights can be granted under customary law. For a comprehensive
review, see Peters (2009). The two positions are complementary, since customary law varies
significantly across tribes and regions and the degree to which communal and individual rights
coexist is context specific. Moreover, customary law is to be understood as a dynamic process
which changes across time to address the changing needs of society, Cotula (2007), and which is
the product of power dynamics at the local level, Chanock (1991).
41
1995 Lands Act, Section 5. The Commissioner of Land is a key actor in the management of land
in Zambia, since he is the delegate of the President for land. Among other tasks, the Commissioner
issues leasehold titles and approves conversions of tenure up to 250 ha (1995 Lands Act).
42
This characteristic is explained very clearly in the famous quote of a Nigerian chief: “I conceive
of land to as belonging to a vast family of whom many are dead, a few are living and countless are
still unborn. People holding land are thus doing so in trust for ancestors and for those who are not
yet born and also the community as a whole.” See Lane (1998), p. 1.
43
1995 Lands Act, Section 8.
44
The procedure for the conversion of customary tenure into leasehold tenure is synthetically
regulated by Section 8 of the 1995 Lands Act. Internal circulars of the Ministry of Lands provide
further details on the conversion procedure, which requires the consent of the traditional leader and
the approval of the District Council. For more details, see the next section of this chapter.
45
350 M. Baldarelli
Since 1964, data on the ratio between state and customary land have not been
updated.46 A land audit was announced in 2014,47 but officially customary land still
constitutes 94% of land in the country. However, beginning in the early 2000s, a
few studies have documented the increased commercialization of customary land
and the rapid pace of conversion into state land.48 As estimates on the title deeds
issued by the Ministry of Lands shows, the Lands Act has been successful in
creating a land market.49 It is also because of this reform that foreign investors
can now access large tracks of land for agricultural purposes by converting cus-
tomary land into state land.50 The next section discusses current trends of agricul-
tural investments and outlines the mechanism through which foreign investors can
access land in Zambia.
3 Agriculture, Land, and Investments: Mapping

the Terrain
The agricultural sector in Zambia accounts for approximately 20% of GDP and is
highly labor intensive, employing more than 70% of the population.51 Beginning in
the late 1970s, the government has introduced policies aimed at the development of
this sector52 in order to diversify the economy and reduce reliance on the mining
sector and copper price fluctuations. The liberalization of the economy and the
dismantling of previous restrictions on foreign investments have been fostered by
the creation of an investment promotion agency, the Zambia Development Agency
(ZDA),53 in charge of “further[ing] the economic development of Zambia by
46
Chitonge (2014), unpublished.
47
Chooma (2014).
48
Adams (2003), Brown (2005) and Chitonge (2014).
49
Ibid.
50
Notwithstanding the numerous restrictions in place, foreign investors could still access land
before the 1995 reform. The Lands Act streamlined the process and reduced the centralized
controls on it, by enabling the conversion of customary land.
51
Agriculture, value added in Zambia (% of GDP), World Development Indicators 2015, http://
data.worldbank.org/indicator/NV.AGR.TOTL.ZS. Accessed 1 June 2015. Employment in agri-
culture in Zambia (% of total employment), World Development Indicators 2015, http://data.
worldbank.org/indicator/SL.AGR.EMPL.ZS. Accessed 1 June 2015.
52
Jenkin (2011).
53
2006 Zambia Development Agency Act. The Act merged five existing independent agencies that
worked to foster trade and development: Zambia Investment Centre, Zambia Privatisation
Agency, Export Board of Zambia, Small Enterprise Development Board, and Zambia Export
Processing Zones Authority. The amalgamation of these five statutory bodies aimed to streamline
investment promotion through the creation of a “one stop facility” for investors (2006 ZDA Act,
Preamble).
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promoting efficiency, investment and competitiveness in business and promoting

exports from Zambia.”54
Foreign investors are required by law to register with the ZDA and to apply for
an investment license.55 Upon obtainment of the license, investors can access the
incentive schemes provided by the government and listed in the 2006 ZDA Act.
Horticulture, floriculture, cotton production, and timber production and processing
have been identified as “priority sectors,”56 so that, by means of example, an
investment of more than $500,000 (USD) in these sectors entitles the company to
“zero percent tax rate on dividends for 5 years [. . .], zero percent tax on profits for
5 years [. . .], zero percent import duty rate on raw materials, capital goods,
machinery including trucks and specialized motor vehicles for five years, deferment
of VAT on machinery and equipment including trucks and specialized motor
vehicles.”57
Alongside these fiscal incentives, to foster agricultural production and expand
the percentage of land under cultivation,58 in 2005 the Government of Zambia
introduced the Farm Block Development Plan, which aims to create large commer-
cial farm blocks in which infrastructures such as electricity, irrigation, and trans-
ports are provided by the government.59 With this policy, the government aims to
attract investments in large-scale and mechanized agriculture by creating nine farm
blocks, one in each Province, in which investors can readily access land suitable for
agriculture and use the related infrastructure. The implementation of the plan has
proved slow and is constrained by a chronical lack of funds, so that to date only one
of the farm blocks envisioned in the policy is (almost) operational.60 Notwithstand-
ing these delays in the creation of farm blocks, the general trend of foreign
investment in agriculture shows an unprecedented growth over the past 10 years,
as the next paragraph discusses.
54
2006 ZDA Act, Section 5.1.
55
2006 ZDA Act, Section 59.
56
2006 ZDA Act, Schedule II.
57
Zambia Development Agency (2013), p. 8.
58
The World Bank estimates that in Zambia only 30% of land suitable for cultivation is currently
utilized and therefore the potential for agricultural development and yields is high, Deininger and
Byerlee (2011). However, these estimates have been contested by scholars who have noted that
some land uses that provide livelihood to rural populations—such as shifting cultivation, nomadic
cattle herding, and collection of common pool resources from forests—are not taken into account
in the statistics. see for example German et al. (2013).
59
Ministry of Finance and National Planning (2005). The farm block policy is strictly intertwined
with land tenure patterns in the country: through it, the Government intends to secure land from
traditional rulers by converting customary land into state land and making it readily available to
investors. However, some traditional rulers have been reluctant to release land for this purpose, as
discussed by Chu (2013). This has further slowed the implementation of the policy, as noted by
Nolte (2014).
60
On farm blocks development, see also Honig (2012).
352 M. Baldarelli
3.1 Agricultural Investments in Zambia: Current Trends
Understanding the actual size of large-scale agricultural investments in Zambia is

not an easy task. At the national level, there is no published statistics on land leased
to foreign investors; the only information available concerns the investment certif-
icates issued by the ZDA to the foreign companies registered to operate in the
country.61
In order to grasp the recent trends of agricultural investments in the country, data
on investment certificates for the years 2004–2014 were acquired from the ZDA.62
For each license issued by the ZDA, the data obtained consist of information on
company name, country of origin, value of the pledged investment in USD, and
expected employment creation. The lack of information on the implementation of
pledged investments constitutes a major limitation of the dataset: the ZDA does not
conduct a thorough monitoring of the investment projects, and at the national level
there is no statistics on the implementation of agricultural investments. Moreover,
the international database on sectorial FDI does not provide data on agricultural
FDI in Zambia,63 so that it is not possible to determine the extent to which pledged
investments have been implemented.
Nonetheless, the data obtained from the ZDA illustrate the trends in the interest
of foreign investors in the agricultural sector in Zambia and show a sharp increase
in the value of pledged investment in agriculture over the past 10 years. Moreover,
they provide an interesting picture of the geographical origin of pledged invest-
ments since they show prevalence in South–South relations.64
As Fig. 2 illustrates, the value of pledged investments has increased tremen-
dously by going from $24,373,000 (USD) in 2004 to the peak of $597,707,705
(USD) reached in 2013.65
With regard to the country of origin, the main investors are South Africans,
British, and Indians. An important role is also played by American and Zimba-
bwean investors, whereas China, although its role in African agriculture has been
extensively discussed in the literature,66 ranks only sixth in the value of pledged
61
The limitations of existing data on large-scale land acquisitions have been highlighted in
footnote 11.
62
Pledged agricultural investments, 2004–2015, Zambia Development Agency (unpublished data
obtained in Lusaka on 25 January 2015).
63
FDI by sector, UNCTAD 2015, www.unctadstat.unctad.org. Accessed 1 June 2015. The limita-
tions of the ZDA dataset on pledged investment in agriculture are extensively discussed by
Jenkin (2011).
64
It is important to note that agricultural investments do not necessarily entail the acquisition of
land by the investor, since the investment can be operated thorough joint-ventures with a local
partner, or through contract farming arrangements.
65
A thorough analysis of the data on pledged agricultural investments in Zambia and their
determinants is beyond the scope of this chapter and can be found in Jenkin (2011).
66
For an empirical analysis, see Chu and Chatelard (2015).
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700000000
600000000
500000000
400000000
300000000
200000000
100000000
0
2004 2005 2006 2007 2008 2009 2010 2011 2012 2013
Fig. 2 Pledged investments in agriculture in USD, 2004–2013 (Author’s calculations based on

ZDA data)
Table 1 Pledged investments in agriculture by country of origin, 2004–2014 (Author’s calcula-

tion based on ZDA data)
Country of origin Total pledged investments in USD (2004–2014)
South Africa 532,098,296
United Kingdom 381,754,971
India 207,554,569
United States 187,859,295
Zimbabwe 125,780,719
Malawi 112,659,500
China 90,700,423
Singapore 77,075,000
Kenya 52,960,000
Mauritius 52,670,333
investments. Table 1 shows the amount of pledged investments over the past
10 years classified according to the investor’s country of origin.67
Land Matrix data on large-scale land acquisitions in Zambia cannot be used to
cross-check the ZDA data on land investments since the Land Matrix focuses on the
size of land acquired rather than on the value of pledged agricultural investments.
However, it is interesting to note that both datasets show that South Africa is the
country of origin of the largest investments. According to the Land Matrix, since
2000, more than 360,000 ha have been acquired by foreign investors for agricultural
purposes, and approximately 220,000 of them are held by South African compa-
nies.68 Table 2 shows the Land Matrix data on land acquired by foreign investors
disaggregated by country.
67
Due to space constraints, the table shows only the top ten countries in terms of pledged
investments value. The ZDA dataset includes more than 44 countries of origin.
68
The Land Matrix Global Observatory, Get the Detail by Target Country, Zambia, http://
landmatrix.org/en/get-the-detail/by-target-country/zambia/. Accessed 1 June 2015.
354 M. Baldarelli
Table 2 Land acquired for Country of origin Total land acquired (hectares)
agricultural investments by
South Africa 225,972
country of origin, 2000–2015
(Author’s calculations based Zimbabwe 34,700
on Land Matrix data) Germany 34,000
United Kingdom 30,172
Hungary 10,000
India 6000
United States 5000
Singapore 4380
Denmark 3000
China 2400
Russia 1700
Based on the data and information collected on site, the Land Matrix figures
appear to underestimate the size of land investments throughout the country since
they did not yet include two of the large-scale land acquisitions in Mumbwa and
Serenje districts that are part of this study.69 The lack of clarity over the size of land
effectively acquired by foreign investors reverberates on the lack of up-to-date
figures on the ratio of customary and state land since many agricultural investments
take place on customary land and determine its conversion into state land. As such,
the land audit announced by the government could illuminate this process and
provide reliable data on land tenure in the country.70
3.2 Acquiring Land for Agricultural Projects: Which Land

and How?
As shown above, the past 10 years have seen a substantial increase in the foreign
acquisition of land for agricultural purposes. The majority of land in the country
falls in the customary domain and as such cannot be freely exchanged in the market:
according to both statutory and customary norms, customary land cannot be
acquired by foreign investors,71 and this determines the pattern in which invest-
ments unfold in the country. As emerged from the analysis of the legislation72 and
69
In particular, in 2013 and 2014 an Indian company in Mumbwa and a South African one in
Serenje have acquired approximately 10,000 ha each, and these transactions have not yet been
included in the Land Matrix database. These processes of land acquisition are not complete, since
in both cases title deeds from the Commissioner of Land have not been issued yet.
70
See footnote 46.
71
Mudenda (2007).
72
1995 Lands Act.
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the interviews with key informants,73 foreign investors can obtain leasehold titles
over land by following three possible procedures.
First, foreign companies can acquire land through private transactions with
leaseholders. In this case, the investment takes place on state land over which a
title deed already exists. Therefore, the procedure is mostly regulated by statutory
norms, and once the parties have agreed on the transaction, the Commissioner of
Land issues a new title deed to the investor.74 During the field research, one large-
scale land acquisition that had followed this procedure was identified in the
Mumbwa district, where a German company acquired more than 30,000 ha on
state land thorough private transactions with the previous leaseholders.75 The area
of interest by the investor was demarcated as state land in the 1940s and then
devoted to commercial farming. By employing members of the local community,
the company engaged in negotiations with more than 20 leaseholders and acquired
title over the whole area.76
Second, investors can approach the ZDA and request assistance in the identifi-
cation of a suitable area that is already demarcated as state land and has been set
aside for investments. The abovementioned policy on farm blocks aimed to make
land readily available to investors by issuing title over it and then allocating it after
a bidding process. However, the implementation of farm blocks is still incomplete,
so that this possibility remains marginal;77 during the field research, no case of
large-scale land acquisition that followed this procedure was identified.
As noted in the literature78 and emerged in the interviews,79 existing state land
“is almost exhausted, so the land for investments has inevitably to come from
customary land.”80 Especially for greenfield investments, which develop land not
73
ZDA, Land Expert, interview n. 3, Lusaka, January 30th, 2015 and interview n. 25, Lusaka,
February 26th, 2015; Ministry of Agriculture and Livestock, Policy and Planning Department,
Chief Economist, interview n. 2, Lusaka, January 27th, 2015; Ministry of Lands, Natural
Resources and Environmental Protection, Commissioner of Lands, interview n. 5, Lusaka,
February 6th, 2015; Ministry of Agriculture and Livestock, Department of Agriculture, Principal
Agricultural Specialist, interview n. 6, Lusaka, February 2nd, 2015.
74
For a detailed discussion of the norms on land alienation, see Mudenda (2007), pp. 783–838.
75
The company (Company “B”) has its headquarters and operations in Kaindu, approximately
40 kilometers away from the District capital of Mumbwa, located in the Central province.
76
Company “B,” Officers, interview n. 20, Mumbwa, February 19th, 2015. The land acquisition
was complicated by several legal issues, including the expiry of many leasehold titles of the
occupants and the mismatch between occupants and title holders. For further information on this
investment, see Phiri et al. (2015).
77
See footnote 58.
78
Nolte (2014).
79
ZDA, Land Expert, interview n. 3 and 25; Ministry of Lands, Natural Resources and Environ-
mental Protection, Commissioner of Lands, interview n. 5; Attorney and Land Law Practitioner,
interview n. 9, Lusaka, 4 February 2015; Land Law Lecturer, interview n. 26, Lusaka, February
27th, 2015.
80
Ministry of Lands, Natural Resources and Environmental Protection, Commissioner of Lands,
interview n. 5.
356 M. Baldarelli
formerly used for commercial agriculture, customary land is central. This pattern
has been confirmed during the field research since two of the large-scale land
investments analyzed are located on customary land, which is currently being
converted into state land.81 The “next frontier”82 for land investments is therefore
customary land, which investors can access by following a hybrid procedure based
on the interplay of customary and statutory laws.
As emerged from interviews, the majority of investors interested in the acquisi-
tion of large tracks of land start their search at the ZDA.83 Although the ZDA is not
in charge of securing land to investors, its experts can provide a land search service
and facilitate the process of identification of land and the issuance of title over it.84
Through site visits in rural areas, the ZDA land experts identify suitable tracks of
land that are in line with the requests of the investor; in most cases, the ZDA
identifies suitable customary land that can be converted into state land.85 If the
investor is satisfied with the land proposed for the project, the ZDA facilitates the
process of conversion, which entails meetings and negotiations at the local level
with traditional rulers, District authorities, and local communities.
As the Lands Act states, the Chief in whose chiefdom the land is located has to
approve the land conversion.86 To prove his agreement, the Chief writes a letter of
consent addressed to the District Council, in which he specifies the size and location
of the land suggested for conversion.87 In the letter, the Chief declares that the land
proposed for conversion is not used or occupied and that the members of the
community have been consulted on the proposed conversion.88 As the next section
elaborates, this provision is especially problematic in the practice of large-scale
land investments: many interviewees and focus group participants noted that
consultation is sought by the Chief and the investor only after the letter of consent
has been submitted to the District Council, or not sought at all.89
81
The South African investment analyzed in Serenje (Company “A”) and the Indian one studied in
Mumbwa (Company “C”) are both located on customary land that, by following the procedure
illustrated in this section, is being converted into state land.
82
Attorney and Land Law Practitioner, interview n. 9.
83
ZDA, Land Expert, interview n. 3; Company “A,” Director, interview n. 13, Serenje, February
11th, 2015; Company “C,” Officers, interview n. 22, Lusaka, February 22nd, 2015. The ZDA Land
Expert notes that “some companies come here, get their investment license, buy their titled land,
and off they go! If the investor does not need the ZDA and feels they can do it on their own, they
are free to do that. That happens only very few times, but most of them have come back crying,
since some things have broken down on the way” (interview n. 3).
84
2006 ZDA Act, Section 64.
85
ZDA, Land Expert, interview n. 3 and 25.
86
87
The procedure of land conversion is regulated by the Lands (Customary Tenure) (Conversion)
Regulations, Statutory Instrument n. 89 of 1996 and by the Administrative Circular n. 1 of 1985.
88
Lands (Customary Tenure) (Conversion) Regulations, Form II.
89
Zambia Land Alliance, Social and Economic Justice Officer, interview n. 1, Lusaka, January
26th, 2015; Ministry of Agriculture and Livestock, District Senior Agricultural Officer, interview
n. 12, Serenje, February 11th, 2015; Company “C,” Officers, interview n. 22; Community
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Once the consent of the Chief has been obtained, the proposed investment is
discussed by the District Council’s Committee responsible for land and plan-
ning.90 In this phase, the investor may be interviewed by the Committee and
requested to produce documents concerning the proposed investment. The Com-
mittee may also organize visits to the site of the proposed conversion, for which
the investor has to bear the costs.91 After the consent of this Committee, the full
Council deliberates on the land conversion and, in case of approval, recommends
the conversion to the Commissioner of Lands, who is ultimately responsible for
the issuance of title.
The procedure is slightly different when conversion is sought for very large
areas. The 1985 Administrative Circular advises District Councils “not to recom-
mend alienation of land on title . . . in excess of 250 . . . hectares as such recom-
mendations would be difficult to consider.”92 Moreover, all the conversions in
excess of 1000 ha are subject to the approval of the President of Zambia.
As clear from the synthesis provided above, the conversion of customary land
entails a variety of procedural steps at the local and national levels. Evidence from
the field—corroborated by literature on large-scale land investments—is discussed
in the next section to highlight the problems that emerge in the conversion process.
Specific attention is paid to the actors that benefit from the large-scale land
investments on customary land.
4 Problematizing Evidence from the Field: Winners

and Losers from the Investments
4.1 Between “Consideration” and “Homage”: The Partial

Commodification of Customary Land
As anticipated in the first section, the Lands Act warns that “no consideration shall
be paid for [land] conversion” and thus excludes the possibility of customary land
sales. This provision addresses the idiosyncratic nature of customary land, which is
meant to ensure livelihood to present and future generations.93 However, the Lands
Act does not provide specific sanctions for the violation of this rule. In 2013 and
Members, focus group discussion n. 1, Mpande, February 13th, 2015; Community members, focus
group discussion n. 2, Moono, February 20th, 2015. Contra: ZDA, Land Expert, interview n. 3;
Zambia Environmental Management Agency, Senior Inspector, interview n. 8, February 5th, 2015.
90
Administrative Circular n. 1 of 1985, Section D.
91
District Council, Planning Officer, interview n. 18, Mumbwa, February 19th, 2015; District
Council, Physical Planning Officer, interview n. 19, Mumbwa, February 19th, 2015; Company
“C,” Officers, interview n. 22.
92
Administrative Circular n. 1 of 1985, Section D (V).
93
See footnote 42.
358 M. Baldarelli
2014, rumors on illegal sales of customary land by chiefs gained attention in the
country. The problem was addressed by the government in several political state-
ments that firmly reiterated the ban on sales of customary land and the role of chiefs
as mere custodians, and not owners, of the land.94
This ban might appear to conflict with the customary law that regulates the
relations between a Chief and his visitors. According to customary norms, every
visitor is expected to pay homage to the Chief in order to show respect for his
authority.95 In the three districts studied, the homage normally consists of groceries
such as rice, sugar, and salt, together with soap and laundry powder.96 The presence
of this customary rule creates a window of opportunity for chiefs and is often used
by them to benefit from the conversion of customary land.
As emerged in the interviews97 and noted in the literature,98 the Chief generally
consents to the conversion of land for investors in exchange for the payment of a
“token.”99 Investors, often accompanied by District or ZDA officers,100 approach
the Chief to request land in his chiefdom and engage in private negotiations over the
nature and amount of the token, which many interviewees describe as a “courtesy”
to the Chief for releasing land to the investor.101 It is important to note that the
mediation of District and ZDA officers helps foreign investors navigate the Zam-
bian customary system: in the interviews, company representatives describe the
role of ZDA in the negotiation with the chiefs as crucial. Zambian officers can
explain customary rules and practices to investors and help them negotiate with the
94
See for example Times of Zambia, 9 October 2014; Lusaka Times, 10 December 2014; Lusaka
Voice, 27 February 2013.
95
The ascertainment of customary law is an extremely difficult and controversial task. As many
authors emphasized, customary law changes over time, and its development is influenced by power
dynamics at the local level (see footnote 40). Moreover, the influence of the observer inevitably
alters the norms that are scrutinized. This chapter does not aim to analyze the specific details of
customary norms, since their content is fluid, context specific, and difficult to ascertain, but rather
to provide an overview of the general content of customary norms that are relevant to large-scale
land acquisitions and regulate the relations between the Chief and his subjects and visitors.
96
Zambia Land Alliance, Social and Economic Justice Officer, interview n. 1; ZDA, Land Expert,
interview n. 3; Chief “B,” interview n. 21, Mumbwa, February 20th, 2015; Community Members,
focus group discussion n. 1.
97
The payment of the “token” has been widely acknowledged by all the interviewees, including
companies, chiefs, government officers, and civil society organizations.
98
See for example German et al. (2014) and Honig (2012).
99
ZDA, Land Expert, interview n. 3.
100
This aspect was noted by many interviewees such as company representatives, chiefs, district
authorities, and ZDA officers (ZDA, Land Expert, interview n. 3 and 25; Ministry of Agriculture
and Livestock, District Senior Agricultural Officer, interview n. 12; Chief “A,” interview n. 14,
Chibale, February 12th, 2015; Company “C,” Officers, interview n. 22).
101
This explanation was put forward, for example, in the following interviews and focus groups:
ZDA, Land Expert, interview n. 3; Ministry of Traditional Affairs and Chieftaincy, Officer,
interview n. 4, Lusaka, 4 February 2015; Company “A,” Director, interview n. 13; Community
Members, focus group discussion 1.
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Chief on the amount to be paid as a token. As noted by a company representative,

during the meetings with the Chief, “ZDA just talks on our behalf.”102
In the districts visited, the chiefs consented to the conversion of land in exchange
for a lump-sum payment. In the literature, however, cases have been reported in
which other benefits were provided to chiefs, such as vehicles or buildings.103
Although consideration for the conversion of customary land is forbidden, evidence
from fieldwork shows that chiefs strategically consider the token as part of their
prerogatives under customary law and not as an illegal practice.104 The amount
transferred to chiefs in exchange for land has not been disclosed by any interviewee
and has not been documented in previous studies; however, interviewees note that
the token varies depending on the size of land transferred to the investor, similarly
to a price for the good exchanged.105
Some of the interviewees further observe that transactions between chiefs and
investors are generally sanctioned by a written agreement, which is signed by both
parties at the end of the negotiations over land. Both chiefs and company officers
mention the existence of written agreements that bind the parties to respect the
conditions stipulated in the negotiations with respect to the size of land, the purpose
of the investment, and the payment for the release of land.106
In the meetings between chiefs and investors for the conversion of customary land,
two different legalities are confronted: the state one, expressed by the ban of
customary land sales, and the customary one, which requires visitors to pay homage
to the Chief. In this confrontation, chiefs successfully secure profits for themselves
and receive the payment of a token by strategically referring to customary law as the
justification for their demands and by interpreting their prerogatives in an extensive
way. As such, chiefs benefit from their position of custodians of land on behalf of
their communities: by alienating the land from the customary domain, they transfer to
investors a good that, on the contrary, for local communities is not marketable.
In these transactions, investors secure access to land for a seemingly nominal
price: as emerged in the interviews, customary land is considerably less expensive
than state land on which title deeds already exist.107 As an investor states in the
102
Company “C,” Officer 1, interview n. 22.
103
Nolte (2014). This was also noted by some interviewees (Zambia Land Alliance, Social and
Economic Justice Officer, interview n. 1; Ministry of Agriculture and Livestock, District Senior
Agricultural Officer, interview n. 12).
104
Chief “A,” interview n. 14; Chief “B,” interview n. 21; Community Members, focus group
discussion 2, Moono, 20 February 2015.
105
Chief “A,” interview 14; Company “C,” Officers, interview n. 22. An analogous research
undertaken by the Author in Ghana shows that local chiefs receive approximately $100 (USD)
per hectare of land released to the investor. The figures in Zambia are expected to be lower.
106
Company “A” Director, interview n. 13; Chief “A,” interview n. 14; Chief “B,” interview n. 21;
Company “C” officers, interview n. 22. The existence of contracts between investors and chiefs
has also been confirmed by the ZDA Land Expert (interview n. 3). Access to these documents has
been denied by all the interviewees, based on their confidentiality.
107
Company “C,” Officers, interview n. 22; ZDA, Land Expert, interview n. 25.
360 M. Baldarelli
interview, “we chose customary land because it is cheaper. Part of the reason we
opted for this type of land is that we were able to create a lot of added value to that
land.”108 Alongside the payments to the chiefs, which according to statutory law
should not be made, investors are required to pay the processing fees for the land
conversion and the issuance of title, which generally takes more than 1 year.109
Even when accounting for the processing fees and the token, investing in customary
land remains considerably cheaper than in state land, and the competitiveness of
customary land appears to come at the expenses of local communities, which see
land permanently alienated from the customary domain.
As mentioned in the previous section, the conversion of customary land is the
main path through which foreign investors access land in Zambia. The alienation of
land by chiefs in exchange for a token can be read as an instance of partial and
informal commodification of customary land, which is further confirmed by the
signing of written agreements between chiefs and investors. In practice, customary
land is sold by chiefs to investors, but according to the chiefs, investors are merely
paying a traditional homage. This mismatch excludes local communities from the
benefits of these monetary transactions, from which, on the contrary, chiefs and
investors stand to benefit in different ways.
4.2 Prior or Subsequent? Community Consultation and Land

Conversions
As seen above, the Chief is in charge of issuing the letter of consent that initiates the
procedure of land conversion. In the letter, the Chief has to declare that he is “not
aware of any other right(s), personal or communal, to the use and occupation of the
land or any other part of the land” and that he “has caused the consultation to be
made with members of the community.”110 The statutory provisions on conversions
do not specify the procedure that is to be followed for the consultation or the way in
which previous rights to land are to be ascertained.111
108
Company “A” Director, interview n. 13.
109
ZDA, Land Expert, interview n. 3; Ministry of Lands, Natural Resources and Environmental
Protection, Commissioner of Lands, interview n. 5; Company “A,” Director, interview n. 13;
District Council, Planning Officer, interview n. 18. It is important to note that the use of customary
land for investment projects is not devoid of problems for foreign investors. Some of the
interviewees reported cases of disputed boundaries between chiefs, which slowed the conversion
process and resulted in the payment of additional tokens by the company, and cases of tension
within the communities affected by the investment, which resulted in additional payments by the
company as a compensation (Company “A,” Director, interview n. 13; Chief “A,” interview n. 14;
Company “C,” Officers, interview n. 22).
110
Lands (Customary Tenure) (Conversion) Regulations, Form II.
111
A more detailed procedure is provided by the environmental impact norms, and specifically by
the Environmental Protection and Pollution Control (Environmental Impact Assessment) Regula-
tions (statutory instrument n. 28 of 1997), which are beyond the scope of this chapter.
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In contrast with the provisions of statutory law, customary law does not require
chiefs to consult communities before deciding on the allocation of customary land.
Although the authority of chiefs over land varies across tribes, chiefs are generally
regarded as custodians of land, and their decisions are not the outcome of partic-
ipatory processes at the local level.112
The literature reports numerous instances in which previous land users have
been displaced because of the conversion of customary land and of its allocation to
investors, in violation of statutory norms.113 This violation has been confirmed by
many interviewees, who emphasize that “there is no such a thing as empty land”114
and that “when you apply to convert large areas of land, it is impossible to find it
empty, without any human activity!”115
On the consultation process, many interviewees observe that the community is
merely “informed”116 after the letter of consent has been issued by the chief and the
procedure to convert land has started. Moreover, some of the interviewees refer to
the consultation as a “sensitization process”117 in which, as noted by a Chief, “we
tell people what is going to happen, that the land is vacant, and that they should
welcome the investor.”118 As such, the consultation does not appear as a participa-
tory process: on the contrary, as argued by one of the interviewees, “consultation
happens only at the top. It does not reach the people on the ground, it does not reach
the bottom of the community.”119
The conversion of land already in use and the lack of consultation are also
reported by the focus group participants. Some community members affected by
land investments lament that the land they were farming has been alienated without
their consent; moreover, most of them report that the consultation happened only
after the investors had taken possession of the land.120
Similarly to the abovementioned situation in which a payment is made to convert
customary land, community consultations see two different legalities confronted: on
the one hand, statutory norms (loosely) prescribe a participatory process, whereas on
the other hand, customary norms concentrate the decision-making authority over land
in the chiefs. In such a confrontation, powerful actors at the local level can success-
fully use this normative uncertainty to promote their interests. Chiefs strategically
112
Mudenda (2007), pp. 759–782.
113
See for example Phiri et al. (2015) and Nolte (2014).
114
Ministry of Agriculture and Livestocks, Acting District Land Husbandry Officer, interview
n. 10, Serenje, February 9th, 2015.
115
Chief “B,” interview n. 21.
116
Zambia Land Alliance, Social and Economic Justice Officer, interview n. 1; Ministry of
Agriculture and Livestock, District Senior Agricultural Officer, interview n. 12; Company “C,”
Officers, interview n. 22.
117
ZDA, Land Expert, interview n. 3; Ministry of Agriculture and Livestocks, Acting District Land
Husbandry Officer, interview n. 10; Chef “A,” interview n. 14.
118
Chef “A.” interview n. 14.
119
Ministry of Agriculture and Livestock, District Senior Agricultural Officer, interview n. 12.
120
Community Members, focus group discussion n. 1 and 2.
362 M. Baldarelli
appeal to their role as custodians of the land under customary law and simplify the
procedure to alienate land to investors by centralizing the decisions and excluding the
community from them. By doing so, they create a shortcut for investors, to whom the
first steps of the land conversion process are simplified.121 This allows investors to
save financial resources since all the expenses of the conversion procedure, including
those related to community consultation and to site visits, are borne entirely by them.
As discussed in the chapter, recent years have seen a sharp increase in the interest in
land by foreign investors. In Zambia, this renewed interest poses challenges to the
land administration system that, due to the colonial history of the country, results
from the interplay of state and customary authority.
Although in principle land investments might benefit local communities by
creating employment opportunities and developing infrastructures, their implemen-
tation at the local level appears to favor traditional leaders and investors at the
expense of community members. By strategically appealing to customary law,
chiefs successfully secure revenues from land investments and simultaneously
allow investors to acquire land at extremely competitive prices. As emerged from
the field research, local communities are excluded from this decision-making
process, and their interests are subordinated to those of the investors and chiefs.
As emphasized above, land investments highlight the weaknesses of the land
administration system and reinforce the trend, which started with the 1995 land
reform, towards the commodification of customary land. However, this commod-
ification is currently effective only for some actors—investors and chiefs—that
appropriate the benefits derived from this common resource, which on the contrary
is not experienced as a commodity by the local community.
The ongoing sale of customary land by chiefs echoes colonial history, and in
particular the agreements through which the Lozi King guaranteed to the British
South Africa Company the exploitation of minerals on the land he controlled.
Similarly to what many commentators have noted with respect to the colonial
concessions, current land transactions are arguably illegal, from both the customary
and statutory perspectives, and result from the abuses and opportunistic behaviors
that take place at the local level. As such, it is necessary to scrutinize the current
land transactions and the process through which they are implemented. In partic-
ular, more empirical research is needed to better understand the negotiations
between investors and chiefs and the conditions under which chiefs agree to release
121
The lack of participation of the community in the decisions over land can become problematic
for investors, since local tensions can hinder the implementation of the projects. As noted by one of
the interviewee, it is only by “getting involved at the local level and obtaining the approval of the
community” that tensions can be solved and operational peace can be achieved (Company “A,”
Director, interview n. 13).
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land. As discussed in the chapter, this aspect is pivotal since it shapes the distrib-
utive outcomes of the investments.
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coercion and dispossession in the global land rush. World Dev 92:1–12
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Agricultural Land Ownership as Food
Sovereignty: The Case of Slovakia
Katarı́na Dirgasová and Jarmila Lazı́ková
1 Introduction
Food sovereignty is a concept that aims at promoting national and international

policies that are oriented toward reducing hunger, malnutrition, and rural poverty.1
Behind the development of the concept of food sovereignty lies a global social
network of NGOs, CSOs, and social movements, as well as many conferences,
forums, and declarations.2 However, the creation of the concept of food sovereignty
is usually linked to the Via Campesina movement, an organization established in
1992 at the Congress of the National Union of Farmers and Livestock Owners,
which coordinates member groups from all continents of the world.3
There are various definitions of food sovereignty, but a uniform conceptualiza-
tion is still missing.4 One of the oldest definitions is found in a statement from the
Via Campesina,5 whereas a more detailed definition was provided by the Peoples’
1
See, e.g., Lee (2007), p. 1; Windfuhr and Jonsén (2005), p. 31.
2
Windfuhr, Jonsén (2005), pp. 1–15.
3
Lee (2007), p. 5.
4
Agarwal (2014), pp. 1247–1268.
5
NGO (1996), p. 1: “Food sovereignty is the right of each nation to maintain and develop its own
capacity to produce its basic foods respecting cultural and productive diversity. We have the right
to produce our own food in our own territory. Food sovereignty is a precondition to genuine food
security.”
K. Dirgasová (*)
Department of Law, Slovak University of Agriculture in Nitra, Nitra, Slovakia
e-mail: dirgasova.katka@gmail.com
J. Lazı́ková
Department of International Law and European Law, Pan-European University, Bratislava,
Slovakia
e-mail: jarmila.lazikova@uniag.sk

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368 K. Dirgasová and J. Lazı́ková
Food Sovereignty Network.6 The latest definition of food sovereignty was

presented in the Declaration of Nyéléni7 of 2007. According to these definitions,
it could be observed that food sovereignty covers the rights that are recognized by
international law (e. g., the right to food according to Article 11 of the International
Covenant on Economic, Social and Cultural Rights8), as well as claims that at the
moment do not enjoy recognition under international law (e. g., the right to access
to resources).9 The International Planning Committee for Food Sovereignty sum-
marized four basic priorities of food sovereignty action: (1) fully implement the
right to food, (2) promote continued access of smallholder farmers to productive
resources, (3) promote models of mainstream agro-ecological production, (4) pro-
mote equitable trade and local markets.10
The last decade witnessed the blossoming of initiatives of different nature
aiming at detailing the content of the right to food, as well as regulating topics
that are deemed crucial for the realization of food security (for instance, investment
in agriculture or security of land tenure).11 Even though it could be stated that these
documents pursue similar objectives compared to the four pillars of food
6
NGO (2003): “Food sovereignty is the right of peoples to define their own food and agriculture; to
protect and regulate domestic agricultural production and trade in order to achieve sustainable
development objectives; to determine the extent to which they want to be self-reliant; to restrict the
dumping of products in their markets, and; to provide local fisheries-based communities the
priority in managing the use of and the rights to aquatic resources. Food sovereignty does not
negate trade, but rather, it promotes the formulation of trade policies and practices that serve the
rights of peoples to safe, healthy and ecologically sustainable production.”
7
Declaration of Nyéléni (2007): “Food sovereignty is the right of peoples to healthy and culturally
appropriate food produced through ecologically sound and sustainable methods, and their right to
define their own food and agriculture systems. It puts the aspirations and needs of those who
produce, distribute and consume food at the heart of food systems and policies rather than the
demands of markets and corporations. It defends the interests and inclusion of the next generation.
It offers a strategy to resist and dismantle the current corporate trade and food regime, and
directions for food, farming, pastoral and fisheries systems determined by local producers and
users. Food sovereignty prioritises local and national economies and markets and empowers
peasant and family farmer-driven agriculture, artisanal fishing, pastoralist-led grazing, and food
production, distribution and consumption based on environmental, social and economic sustain-
ability. Food sovereignty promotes transparent trade that guarantees just incomes to all peoples as
well as the rights of consumers to control their food and nutrition. It ensures that the rights to use
and manage lands, territories, waters, seeds, livestock and biodiversity are in the hands of those of
us who produce food. Food sovereignty implies new social relations free of oppression and
inequality between men and women, peoples, racial groups, social and economic classes and
generations.” https://nyeleni.org/IMG/pdf/DeclNyeleni-en.pdf. Accessed 16 March 2017.
8
UN General Assembly, International Covenant on Economic, Social and Cultural Rights
(ICESCR), 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3, available at: http://
www.refworld.org/docid/3ae6b36c0.html. Accessed 24 February 2016.
9
Declaration of Nyéléni (2007). https://nyeleni.org/IMG/pdf/DeclNyeleni-en.pdf. Accessed
16 March 2017.
10
See, e.g., Desmarais et al. (2010), p. 6; Windfuhr and Jonsén (2005), pp. 14–15.
11
FAO (2004, 2014a, b) and FAO CFS (2012).
Agricultural Land Ownership as Food Sovereignty: The Case of Slovakia 369
sovereignty, it should be clarified that they do not refer to food sovereignty, but only
to food security.
Created in the 1970s, food security is a much older term than food sovereignty,
and it is conceived as a policy objective rather than an international obligation.12
Notwithstanding the fact that the definition of food security includes “physical and
economic access to sufficient, safe and nutritious food,”13 until the last decade the
international policies promoting food security have focused more on the aspect of
food production rather than on the entitlement of individuals in accessing food.14
Against this background, the civil society campaign led by La Via Campesina seeks
to replace the production-based and market-based strategy to food security with a
human-centered strategy to fight hunger, malnutrition, and poverty.15
Indeed, food sovereignty and food security are two very different terms, and yet
none of the two is comparable to the content of the right to food, which therefore
stands as a third concept.16 While food security is more of a technical concept, and
the right to food a legal one, food sovereignty is essentially a political concept.17
In the course of current legislative activities, Slovak lawmakers are trying to
tackle the food security issue by focusing on the security of access to food by
Slovak citizens, therefore embracing a vision of food policies that entails also
actions that could be in line with the contents of food sovereignty. For this reason,
the authors of this chapter prefer to adopt the concept of food sovereignty as
evaluation term for assessing the legislative activity in Slovakia in spite of the
fact that food security and right to food are more established concepts. Indeed, it
could be arguably remarked that Slovakia does not have any obligation to promote
food sovereignty, unless its government includes it as a commitment in some
official document. On the contrary, it can be affirmed that Slovakia has an obliga-
tion to promote the right to food.18 Another reason that led the authors adopt the
“food sovereignty lens” is the fact that the term is increasingly being incorporated
into official documents (e.g., the Guiding Principles on Extreme Poverty and
12
Pinstrup Andersen (2009), pp. 5–7; Ejeta (2009), pp. 391–402; Windfuhr and Jonsén (2005),
p. 19; Gysel (2016), p. 4.
13
FAO (1996): “Food security exists when all people, at all times, have physical and economic
access to sufficient, safe and nutritious food that meets their dietary needs and food preferences for
an active and healthy life.”
14
Windfuhr and Jonsén (2005), p. 33.
15
Dunford (2014), pp. 239–261.
16
Schanbacher (2010), pp. 53–77.
17
Windfuhr and Jonsén (2005), pp. 23–24.
18
UN General Assembly, International Covenant on Economic, Social and Cultural Rights
(ICESCR), 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3, available at: http://
www.refworld.org/docid/3ae6b36c0.html. Accessed 24 February 2016.
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Human Rights,19 UN General Assembly Resolution No. 67/164,20 the Final Report
of the Special Rapporteur on the Right to Food,21 and the Draft UN Declaration on
the Rights of Peasants and Other People Working in Rural Areas22).
2 Land Tenure
Land tenure has generally been considered a matter of exclusive national relevance,
but as in the recent years, food security problems have been more widely discussed;
the land question has increasingly become a matter of global importance as an
instrumental factor for ensuring global food security.23 Indeed, it has become
evident how the eradication of hunger and poverty, as well as the sustainable use
of the natural resources, depends in large measure on how people, communities,
and others gain access to land and other natural resources.24 Tenure systems
increasingly face stressful challenges as the world’s growing population requires
food security, while environmental degradation and climate change reduce the
19
UN Human Rights Council, Final draft of the guiding principles on extreme poverty and human
rights, submitted by the Special Rapporteur on extreme poverty and human rights, 18 July 2012,
A/HRC/21/39: “Lack of food sovereignty compromises autonomy and dignity.” http://www.
refworld.org/docid/5051d1d52.html. Accessed 12 Dec 2016.
20
UN General Assembly Resolution 51/171 Food and sustainable agricultural development
A/RES/51/171 (16 December 1997): “Takes note with appreciation of the guiding principles on
extreme poverty and human rights, adopted by the Human Rights Council in its resolution 21/11as
a useful tool for States in the formulation and implementation of poverty reduction and eradication
policies, as appropriate.” http://research.un.org/en/docs/ga/quick/regular/51. Accessed
19 Aug 2016.
21
Special Rapporteur on the Right to Food Olivier De Schutter (2014) Final report: The Trans-
formative Potential of the Right to Food (A/HRC/25/57): “Food sovereignty is a condition for full
realization of the right to food.” http://www.google.sk/url?sa¼t&rct¼j&q¼&esrc¼s&
source¼web&cd¼1&ved¼0ahUKEwjGsvy5pvPQAhUDJMAKHZ7PALAQFggYMAA&url¼http
%3A%2F%2Fwww.ohchr.org%2FEN%2FHRBodies%2FHRC%2FRegularSessions%2FSession
25%2FDocuments%2FA_HRC_25_57_ENG.DOC&usg¼AFQjCNFRCbnFcpZ5vJLw4Rw1gsn
LfyCmmw&bvm¼bv.141536425,bs.2,d.d24. Accessed 5 Dec 2016.
22
UN (2015) Draft UN Declaration on the Rights of Peasants and Other People Working in Rural
Areas presented by the Chair-Rapporteur of the working group: “Food sovereignty is the right of
peoples to healthy and culturally appropriate food produced through socially just and ecologically
sensitive methods. It entails peoples’ right to participate in decision-making, and to define their
own food and agriculture systems.” http://www.google.sk/url?sa¼t&rct¼j&q¼&esrc¼s&
source¼web&cd¼2&ved¼0ahUKEwiqk9WLqPPQAhWIPxoKHXCnAxkQFggiMAE&url¼http
%3A%2F%2Fwww.ohchr.org%2FDocuments%2FHRBodies%2FHRCouncil%2FWGPleasants%
2FSession3%2FDraft_Declaration_presented_by_Chair_EN.doc&usg¼AFQjCNG-UCA13Ai0noo
Poik7rIu25-gtfQ&bvm¼bv.141320020,d.d2s. Accessed 6 Dec 2016.
23
Foley (2005), pp. 570–574. For an insightful discussion of this topic, see the contribution of
Brunori in this same volume.
24
FAO CFS (2012).
availability of land, fisheries, and forests.25 Inadequate rights of access to land and
other natural resources, as well as insecure tenure of those rights, often result in
extreme poverty and hunger.26 According to De Shutter’s analysis, states would be
acting in violation of the human right to food if, by leasing or selling land to
investors, they would subtract land used by local population, thereby depriving
them of access to productive resources.27
Recognizing this nexus, between 2009 and 2011, government officials, civil
society organizations, private sector representatives and academics gathered by the
FAO Committee of Food Security and negotiated the Voluntary Guidelines on the
Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of
National Food Security.28 Despite being voluntary, the guidelines explicitly refer to
existing human rights obligations related to natural resources while providing
interpretation and guidance on how to implement them.29 The voluntary guidelines
are anchored in human rights and intended to provide guidance for successive
governments on how to improve the governance of land and natural resources.30
At first sight, access to food and access to land might appear to be a problem
faced by developing countries.31 European countries produce large amounts of
food, while the European Union is one of the largest exporters of food in the
world. However, food security is also an important issue for European countries.
Firstly, European countries are also endangered by food crises because of climate
and environmental changes, while the current economic and financial crisis has
resulted in increasing food insecurity and even hunger within Europe.32 Secondly,
agricultural land is a unique natural resource, which can be crucial to the economic
and social security of a nation, and market systems alone cannot adequately address
the need for a sufficient agricultural land base.33 Thirdly, one of the major obstacles
25
See, e.g., Turral et al. (2011); FAO (FAO 2014a, b, 2016).
26
Munro Faure and Palmer (2012), p. 9.
27
Special Rapporteur on the Right to Food Olivier De Schutter (2014) Large—Scale Land
Acquisition and Leases: A set of core principles and measures to address the human rights
challenge: “States would be acting in violation of the human right to food if, by leasing or selling
land to investors (whether domestic or foreign), they were depriving the local populations from
access to productive resources indispensable to their livelihoods. They would also be violating the
right to food if they negotiated such agreements without ensuring that this will not result in food
insecurity, for instance because this would create a dependency on foreign aid or on increasingly
volatile and unpredictable international markets, as large proportions of the food produced thanks
to the foreign investment would be shipped to the country of origin of the investor or sold on the
international markets.” http://www2.ohchr.org/english/issues/food/docs/BriefingNotelandgrab.
pdf. Accessed 31 Aug 2015.
28
FAO CFS (2012).
29
Seufert (2013), pp. 181–186.
30
Guffens and Seufert (2013), p. 223.
31
Jacobs (1999); Aabø and Kring (2012); Alarcón and Bodouroglou (2011), pp. 1–23; Chen
(2007), pp. 1–15; Scherr and Yadav (1996); Tschamtke et al. (2012), pp. 53–59; Heri et al. (2011).
32
Guffens et al. (2013), p. 223.
33
Jacobs (1999), p. 16.
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to enhancing food supplies in developing countries is the lack of capacity among

smallholder farmers, who form the backbone of agriculture.
Farmers are also increasingly competing for resources such as land, energy, and
water. Meanwhile, large-scale land acquisitions by foreign investors pose signifi-
cant concerns34 as small-scale farmers are often displaced or downgraded to waged
laborers.35 The lack of capacity among small-scale farmers, including the access to
land, is also a problem for European countries; otherwise, the European Union
would not need to support young and small-scale farmers through various legisla-
tive and financial measures.36 Farmland grabbing is underway in the EU today, as
measured by the degree of foreign ownership of land, the capturing of control over
extended tracts of land, and the irregularities that have accompanied various land
transactions.37 New “deal brokers” (in finance, business and property) have joined
the ranks of other elites (food empires, commercial producers, banks) to determine
the dynamics of the European land rush.38 Farmland grabbing has become an active
factor in the further weakening of the socioeconomic and environmental vitality of
the rural sector.39 It has direct impacts on national and European food sovereignty
as well. The concentration of land in the hands of large nonagricultural investors
and large agricultural concerns is incompatible with the European model of sus-
tainable and multifunctional agriculture.40 Land policy belongs to the exclusive
power of the Member States; there are only few frameworks upon which regulation
at EU level is possible (e.g., internal market, agriculture, environment, and territo-
rial cohesion).41 On the one hand, the Member States are responsible for land
legislation to prevent speculation on the land market. On the other hand, they are
limited by the free movement of goods and capital within the EU internal market.
It is also the current problem of Slovakia that young and small-scale farmers face
very serious difficulties in acquiring land.42 Most agricultural land is cultivated by
large-scale agricultural corporations.43 Moreover, free movement of capital, includ-
ing agricultural land, enables foreigners to buy agricultural land, which can be a
very lucrative asset because of very low land prices.44 In addition, the most fertile
land is used by foreign investors for nonagricultural purposes.45 Therefore, there is
34
Douwe van der Ploeg et al. (2015), pp. 147–162.
35
Lerch (2015).
36
Rumanovská and Takáč (2015); Takáč (2014), pp. 20–22.
37
Kay et al. (2015), p. 11.
38
Douwe van der Ploeg et al. (2015), pp. 147–162; Carroccio et al. (2016), pp. 1–9.
39
Kay et al. (2015), p. 11.
40
European Economic and Social Committee (2015).
41
Kay et al. (2015), p. 12.
42
Bandlerová et al. (2012), pp. 32–37; Bandlerová and Valach (2011), pp. 14–18; Bandlerová et al.
(2011), pp. 15–29; Takáč, Bandlerová (2010), pp. 4–18; Takáč (2010), pp. 260–266.
43
Takács-Gy€orgy et al. (2008), pp. 99–112.
44
Takáč (2007), pp. 199–206.
45
Buday et al. (2013), pp. 5–22.
a serious fear that all the abovementioned factors may pose a threat to food
sovereignty in Slovakia.
Slovak lawmakers have adopted legal regulations with the aim to provide
opportunities for small-scale farmers to preferentially acquire land and to protect
agricultural land. The following sections point out the effectiveness of national
legislative measures, which ought to protect land at the national level with regard to
compliance with European Union law. The first analyzed law clarifies the process
of acquiring agricultural land under the new legal regulation, Law 140/2014
Collection on the Acquisition of Ownership of Agricultural Land and amending
and supplementing certain laws46 (hereinafter the Law on the Acquisition of
Ownership of Agricultural Land), which came into force on June 1, 2014, stating
that farmers should have preference in acquiring land. An analysis of agricultural
land offers, published in the Registry of Agricultural Land Offers47 (hereinafter the
Registry), which is administered by the Ministry of Agriculture and Rural Devel-
opment of the Slovak Republic, is also included. The second analyzed law, Law
220/2004 Collection on the Protection and Use of Agricultural Land and amending
Law 245/2003 Collection on the Integrated Prevention and Control of Environ-
mental Pollution and amending and supplementing certain laws48 (hereinafter Law
220/2004 Collection on Agricultural Land Protection), is related to the direct
protection of agricultural land in Slovakia. We stress the effectiveness of legislative
measures and their development with regard to protecting the land as a state
resource of food sovereignty.
3 Law on Acquisition of Agricultural Land Ownership
On May 1, 2004, Slovakia joined the European Union, meaning that its territory
was included in an internal market with free movement of goods, services, persons,
and capital. Slovakia negotiated a 7-year transition period with the aim of
maintaining the existing restrictions relating to the acquisition of property rights
to agricultural and forest lands in Slovakia by nonresidents. In 2011, when the
7-year transition period expired, Slovakia made a request for its extension. The
European Commission issued the 2011/241/EU Decision of April 1, 2011,49 which
extended the moratorium, but only in relation to the acquisition of agricultural land
(not forest land) in Slovakia. Under Article 1 of this decision, the transition period
46
Slovakia, Law 140/2014, “Collection on the Acquisition of Ownership of Agricultural Land and
amending and supplementing certain laws.”
47
Registry of Offers of the Agricultural Land. https://pozemky.mpsr.sk. Accessed 1 June 2015.
48
Slovakia, Law 220/2004, “Collection on the Protection and Use of Agricultural Land and
Amending Law 245/2003 Collection on the Integrated Prevention and Control of Environmental
Pollution and amending and supplementing certain laws.”
49
Commission Decision of 14 April 2011 extending the transitional period concerning the acqui-
sition of agricultural land in Slovakia, OJ [2011] L 101.
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concerning the acquisition of agricultural land in Slovakia, referred to in Chapter 3

of Annex XIV to the 2003 Act on Accession, was extended until April 30, 2011.
On June 1, 2014, the Law on the Acquisition of Ownership of Agricultural Land
came into force. The main objective of this law is to protect agricultural land in
Slovakia as a natural resource, as well as protect the predominant right of farmers to
access agricultural land.50 The law seeks to meet these objectives with the intro-
duction of a very complicated procedure for agricultural land transactions.51 There
are also some personnel and objective exemptions when the complicated process is
not necessary.52 Most land transactions, however, became even more complicated.
Within the diction of the new legal regulation, it is no longer sufficient to only
conclude the purchase or donation contract on agricultural land.53 It is necessary to
carry out a number of other administrative procedures, which extends the whole
transaction process.
Generally, an owner of agricultural land, known as a transferor, who wants to
sell, exchange, or donate his/her land, is obliged to publish his/her offer in the
Registry, which is available from the website of the Ministry of Agriculture and
Rural Development of the Slovak Republic. Any offer of agricultural land has to be
published in the Registry for a period of at least 15 days. Formal requirements for
submitting an offer concerning the transfer of agricultural landownership are
exhaustively listed in the law.54 At the same time, the owner is obliged to publish
the offer on the bulletin board in the municipality in which the agricultural land is
located.55
The potential acquirer of land is obliged to record his/her interest in the acqui-
sition of the offered land in the Registry and at the address of the owner as well.56
Otherwise, an irrefutable presumption of absence of his/her interest in the transfer
of ownership is established.
Moreover, lawmakers have set out the order of persons entitled to become
acquirers of agricultural land.57 The farmer who has provided an agricultural
business for at least 3 years before the conclusion of a contract in the municipality
in which the respective land is situated has the predominant right to offer land. In
such cases, the bureaucratic process described above is not necessary. Further, the
ownership of agricultural land may be acquired by a person who has permanent
residence (in the case of a natural person) or a registered office (in the case of a legal
person) in Slovakia for at least 10 years and carried out agricultural production as a
50
Slovakia, Explanatory Statement to the Law 140/2014 Collection on the Acquisition of Owner-
ship of Agricultural Land and amending and supplementing certain laws, General Part.
51
Art. 4–6, of Law 140/2014.
52
Art. 2–4 (1), of Law 140/2014.
53
Artt. 588–611, of Law 40/1964 Civil Code.
54
Art. 5 (1), of Law 140/2014.
55
Art. 4 (3), of Law 140/2014.
56
Art. 5 (3), of Law 140/2014.
57
Art. 4 (1) and (4), of Law 140/2014.
business for at least 3 years before the date of the conclusion of a contract on the
transfer of ownership of agricultural land either (a) in the municipality adjacent to
the municipality in which the agricultural land being transferred is located or
(b) regardless of the place of business.58 In third place are those persons who
have had a permanent residence or registered office in Slovakia for at least
10 years.59 The condition of permanent residence (or registered office) is sufficient,
meaning that the acquirer does not have to fulfill the condition of conducting
business in agricultural production.
The condition of permanent residence was considered by the European Com-
mission as a legal rule that violates the principle of nondiscrimination as one of the
basic legal principles of European Union law. It is clear that the inhabitants of
Slovakia are able to fulfill this condition more easily than inhabitants from other
European Union countries, which means that this rule can cause indirect discrim-
ination in purchasing agricultural land. If the law is not amended, there is a serious
possibility that a claim against Slovakia will be heard in the Court of Justice of the
European Union. On the other hand, it should be reevaluated whether agricultural
land with regard to the abovementioned considerations of food sovereignty is a
suitable objective, including under the term of capital and in turn the free movement
of capital.
The fulfillment of all the abovementioned requirements has to be verified by the
District Office. The application regarding verification is made by the person
interested in the offered land before the conclusion of the contract. It is necessary
to accompany the application with seven annexes, including confirmation from the
municipality in which the person carries out agricultural production as a business,
proof that the business conducted involves agricultural production, or proof that the
applicant has had a permanent residence or a registered office in Slovakia for at
least 10 years before the conclusion of the contract on the transfer of ownership
regarding agricultural land.60 The District Office issues a certificate on fulfillment
of the requirements within 30 days.61 Thus, the certificate becomes an annex to the
contract. The contract and certificate are the most important documents when
registering the new property rights to agricultural land in the land cadastre.
The predominant right of farmers to access agricultural land is clearly defined in
the respective law.62 However, the first objective of the law—to protect agricultural
land—only indirectly results from the rules within the law. We can assume that land
protection will be maintained through the predominant right to agricultural land,
which is guaranteed to farmers. There is only a comprehensible line between land
protection, which is used by lawmakers to explain the needs of this law, and the
legal rules of this law, which are not explicitly inclined toward protecting the land.
58
Art. 4 (4), of Law 140/2014.
59
Art. 4 (6), of Law 140/2014.
60
Art. 6 (3), of Law 140/2014.
61
Art. 6 (4), of Law 140/2014.
62
Art. 4, of Law 140/2014.
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On the other hand, the date in which the law was adopted and some of its legal rules
(e.g., the condition regarding permanent residence in Slovakia) reflect the primary
objectives of the law, which are intended to protect the land against the free
movement of capital within the European Union.
However, there were (especially before the amendment) many gaps in the law.
Firstly, the contracting parties had been able to evade the entire procedure for
concluding the contract through the institution of interchange. This option was
removed by the first amendment of this law, such that only land plots are suitable
for interchange.63 Nowadays, it is no longer possible to change land for, say, a car.
Secondly, the contracting parties are no longer able to negotiate the land price. The
potential purchasers can only accept or refuse the price stipulated by the landowner,
with no possibility of changing it. On the other hand, the landowner is limited to
his/her choice of contracting party because the order of the purchaser is stipulated
by law. This represents a huge interference in the free market regarding land.
Thirdly, the farmers cannot use the land as a pawn when they wish to finance a
land purchase with a bank loan because pawning is, de facto, not possible to realize.
This procedure is also applicable to the pawn, meaning that it is impossible to sell
the pawn by voluntary auction. The law limits the contracting parties in terms of
their creating equilibrium in the land market, which makes the financial situation of
the farmers difficult. Therefore, the abovementioned objectives of the law are
hardly fulfilled by this legal regulation. The new law complicates the land trans-
actions, not only for foreigners but also for farmers, mainly small-scale farmers,
who want to increase their acreage of cultivated agricultural land. The law neither
helps farmers acquire land nor hinders investors acquiring land mainly for
nonagricultural purposes. In conclusion, the law worsens the conditions for farmers
to access agricultural land, which also threatens the food sovereignty of the
countries referred to above.
In spite of the gradual development of the agricultural land market from 2004
onward, agricultural land sales represent a small part of all land transactions in
Slovakia. The new legal regulation has slowed many land transactions because of
numerous bureaucratic operations; however, it did not bring the agricultural trade
market to a halt.
3.1 The Acreage of Offered Agricultural Land
Slovakia is a Central European country covering an area of 4,903,613 ha. Agricul-

tural land forms about 49% of the country, forest land occupies about 41%, and
63
Slovakia, Law 122/2015, “Collection on the Changes and Amendments of Law 140/2014
Collection on the Acquisition of Ownership of Agricultural Land and amending and
supplementing certain laws.”
Table 1 Structure of the agricultural land in Slovakia (Geodesy, Cartography and Cadastre
Authority of Slovak Republic, 2015)
2008 2010 2012 2014

Agricultural land (ha) 2,428,899 2,417,933 2,410,812 2,401,693
- of it:
Arable land (%) 58.71 58.64 58.72 58.84
Hops (%) 0.02 0.02 0.02 0.02
Vineyards (%) 1.12 1.12 1.12 1.11
Gardens (%) 3.16 3.17 3.18 3.18
Fruit groves (%) 0.72 0.71 0.70 0.70
Permanent grasslands (%) 36.27 36.33 36.26 36.14
water areas represent nearly 2%.64 The structure of the land is documented in
Table 1.
The structure of agricultural landownership in Slovakia is different from the
structure of land use. After 1990, agricultural land was expected to be mostly
farmed by its owners. The expectations were not fulfilled, and owners of the
agricultural land were usually interested in selling or leasing their land.65 About
90% of agricultural land is currently being leased, and land leasing will play a very
important role in future.66 However, there is a similar situation in other European
Union countries.67 Agricultural land is either leased from the owners who are
mostly natural persons or from the Slovak Land Fund, which administers state
land and land of unknown owners.68 The majority of land is cultivated by large-
scale agricultural corporations (agricultural cooperatives and business companies).
New young farmers or small-scale farmers face a very difficult situation when they
want to enlarge the acreage of their agricultural land.
3.1.1 The Acreage of Arable Land Offered by the Registry
The total acreage of arable land offered for sale via the Registry during the period
from June 1, 2014, to May 31, 2015, equates to 2170 ha. According to Fig. 1, we can
see that the largest arable land acreage was offered for sale in the Nitra region
(731 ha, which represents 33.70% of the total acreage of offered arable land), in the
Košice region (578 ha, which represents 26.65% of the total acreage of offered
64
Statistical Office of the Slovak Republic, Statistical Yearbook. www.statistics.sk/. Accessed
24 June 2015.
65
Bandlerová et al. (2013), pp. 55–60; Bezáková et al. (1996), pp. 59–62.
66
Bandlerová et al. (2005), pp. 145–152; Rumanovská (2014), pp. 315–321.
67
Ciaian et al. (2012), pp. 2–3.
68
Lazı́ková, Takáč (2010), p. 10; “land of unknown owner” refers to land where the ownership is
not documented and the owner is not known.
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5.97% (130 ha)

1.27% (28 ha)
Banská Bystrica region
4.60% (100 ha)
33.70% (731 ha) Bratislava region
1.07% (23 ha)
Košice region
Nitra region
18.22% (395 ha) Prešov region
Trenčín region
26.65% (578 ha) Trnava region

Žilina region
8.51% (185 ha)
Fig. 1 Share of the arable land acreage offered for sale in the Slovak regions (NUTS 3) during the
period from June 1, 2014, up to May 31, 2015 (Registry of Offers of the Agricultural Land
2014–2015)
arable land), and in the Banská Bystrica region (395 ha, which represents 18.21% of
the total acreage of offered arable land). We can conclude that these three regions
represent the base of the arable land market. In other words, almost 80% of the total
acreage of arable land was offered for sale in these cadastral areas overall. Con-
versely, during the monitoring period, the smallest acreage was offered for sale in
the Žilina region (23 ha, which represents 1.07% of the total acreage of arable land
offered for sale).
3.1.2 The Acreage of Permanent Grasslands Offered by the Registry
The total area of permanent grasslands offered for sale via the Registry between
June 1, 2014, and May 31, 2015, represents 578 ha. According to Fig. 2, the largest
acreage of offered permanent grasslands was located in the Banská Bystrica region
(240 ha, which represents 41.42% of the total acreage of permanent grassland
offered for sale) and in the Košice region (169 ha, which represents 29.28% of
the total area of permanent grassland offered for sale). More than 70% of the total
acreage of offered permanent grassland was available in the cadastres of these two
regions. During the monitored period, the smallest permanent grasslands acreage
was offered for sale in the Trnava region (1 ha, which represents 0.22% of the total
acreage of permanent grassland offered for sale).
3.17% (18 ha)

Banská Bystrica region
29.28% (169 ha)
Bratislava region
Košice region
9.57% (55 ha) 1.47% (8 ha)
Nitra region
0.22% (1 ha)
13.56% (78 ha) Prešov region
1.30% (7 ha)
Trenčín region
Trnava region
41.42% (240 ha)
Žilina region
Fig. 2 Share of the permanent grasslands acreage offered for sale in the Slovak regions (NUTS3)
during the period from June 1, 2014, up to May 31, 2015 (Registry of Offers of the Agricultural
Land 2014–2015).
3.2 The Agricultural Land Prices
The land prices are influenced by many factors, one of them being the access of
foreign investors to the land market in the country.69 With this in mind, we
monitored whether the land prices offered by landowners will be close to the land
prices in other European countries. Figure 3 documents the land price in selected
European countries.
3.2.1 The Average Price of Arable Land Offered by the Registry
The average price of arable land proposed by sellers in their offers, as published in
the Registry, was EUR 1.98/m2 in the period from June 1, 2014, to May 31, 2015
(Fig. 4). In the monitored period, the average price of arable land, according to Law
582/2004 Collection on Local Taxes and Local Fees for Municipal Waste and
Minor Construction Waste (hereinafter the Law on Taxes), was EUR 0.43/m2.
We can conclude that the average price of arable land per 1 m2, as demanded by
sellers, is more than 4.5 times higher than the average price according to the Law on
Taxes. This law stipulates land prices according to quality.
The highest average price demanded by sellers for 1 m2 of arable land was in the
Prešov region, which amounted to EUR 5.71/m2. This extremely high price was due
to the fact that there was one particular offer regarding the sale of arable land, in
which the seller asked for EUR 50/m2, which was published in the Registry in
August. Meanwhile, there were eight offers in which the seller asked for EUR 45/m
2
in December. These extremely high offers regarding the sale of arable land
69
Buday et al. (2013), pp. 5–22.
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12.000
10.000 CZ
ES
Land price EUR.ha-1
8.000
FI
6.000 FR
LT
4.000
LV
2.000 SE
SK
0
2003 2004 2005 2006 2007 2008 2009
Fig. 3 Development of the agricultural land prices in selected European countries (Eurostat,
2012)
6,00 5.71
5,00
4,00
€/m2
3,00 2.61
2.19 1.98
2,00
1.33 1.10 0.91 1.06
0.62 0.96
1,00 0.65 0.51 0.62 0.43
0.28 0.30 0.24 0.24
0,00
Banská Bratislava Košice Nitra Prešov Trenčín Trnava Žilina Slovak
Bystrica region region region region region region region Republic
region
price required price according to

by sellers the Law on taxes
Fig. 4 The average price of arable land in Slovak regions (NUTS 3) during the period from June
1, 2014, up to May 31, 2015 (Registry of Offers of the Agricultural Land 2014–2015)
skewed the average price asked for by sellers in the Prešov region, as well as in
Slovakia as a whole.
On the basis of the offers published in the Registry, the lowest average price of
arable land asked for by the sellers was recorded in the Nitra region at the level of
EUR 0.91/m2. The low price of arable land in the Nitra region was caused by
225 offers published in the region at a price of up to EUR 0.83/m2. It should be
emphasized that, in all these offers, the sellers demanded a price that was several
times lower than that of arable land according to the Law on Taxes.
We noticed a paradox in that the land of highest quality was rarely offered for a
higher price than that specified by the Law on Taxes; however, land in the regions
with the poorest land quality was offered for a much higher price than that specified
in the Law on Taxes.
3.2.2 The Average Price of Permanent Grasslands Offered by

the Registry
The average price of permanent grasslands asked for by sellers, according to their
offers published in the Registry in the period from June 1, 2014, up to May
31, 2015, amounted to EUR 1.28/m2 (Fig. 5). In the same period, the average
price of permanent grasslands according to the Law on Taxes was EUR 0.08/m2.
The average price of permanent grasslands, according to the Law on Taxes, was
almost 16 times lower than the average price of permanent grasslands asked for by
sellers via the Registry.
The highest average price per 1 m2 of permanent grasslands, as asked for by
sellers during the monitored period, was found in the Trnava region (EUR 4.21/m2).
The reason for such high prices for permanent grasslands related to two offers for
the sale of permanent grasslands at a price of EUR 10.94/m2, which was published
in the district of Trnava in October, and another offer, which was published in the
same district at the same price in November. It should be noted that, in this case, the
4,50 4.21
4,00
3,50
3,00
2,50 1.75
2,00
1.28
1,50 1.11 0.75
0.84 0.90
1,00 0.27 0.420.15
0,50 0.05 0.09 0.05 0.13 0.03 0.11 0.03 0.08
0,00
price required price according to

by sellers the Law on taxes
Fig. 5 The average price of permanent grasslands in the Slovak regions (NUTS 3) during the
period from June 1, 2014, up to May 31, 2015 (Registry of Offers of the Agricultural Land,
2014–2015)
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seller offered a price that was more than 100 times higher than the value of those
permanent grasslands according to the Law on Taxes (EUR 0.11/m2).
During the monitored period, the lowest average price of permanent grasslands
proposed by sellers was in the Košice region (EUR 0.27/m2). The decrease in the
average price proposed by sellers per 1 m2 of permanent grasslands was primarily
caused by offers for the sale of permanent grasslands, where the sellers assessed the
value of their respective agricultural land at EUR 0.01/m2 and EUR 0.02/m2. Such
an extreme decline in the average price of permanent grasslands is most likely a
result of the low quality of land, which is reflected in the price of land according to
the Law on Taxes.
4 Law on Agricultural Land Protection
The development of the agricultural sector is influenced by the decrease in agri-

cultural land area, particularly arable land, and the problem of farmers’ access to
land. Major decreases in agricultural land areas have been documented in Estonia,
Bulgaria, Latvia, Poland, and Slovakia.70 Agricultural land is increasingly used for
nonagricultural purposes, while foreign investments support nonagricultural land
use. This phenomenon also threatens the food sovereignty of the state. Therefore,
lawmakers around the world have adopted legal regulations for the protection of
agricultural land. Slovak lawmakers have tried to pursue this approach in the form
of the abovementioned Law on the Acquisition of Ownership of Agricultural Land,
which was not very successful, and Law 220/2004 Collection on Agricultural Land
Protection.
According to the latter law, agricultural land should be protected by various
legal institutes regulated by this law, e.g. by the principles of the sustainable use of
agricultural land; the obligations of landowners and users in terms of how to protect
the land against degradation, erosion, etc.;71 the procedure of changing the land
type;72 and the procedure whereby agricultural land should be used for
nonagricultural purposes.73 We focus our attention to the last one.
In the case in which a landowner wants to use agricultural land for
nonagricultural purposes (e.g., building purposes), he/she needs to file an applica-
tion regarding permanent or temporal exclusion of the respective land plot from
agricultural land at the county office. The landowner needs to attach several
annexes and pay the fee for the exclusion of agricultural land.74 The fees are
stipulated by Government Regulation 58/2013 Collection. Nowadays, the fees are
70
Bielik et al. (2013), p. 75.
71
Art. 3–8, of Law 220/2004.
72
Art. 9–11, of Law 220/2004.
73
Art. 12–18, of Law 220/2004.
74
Art. 17 (5), of Law 220/2004.
EUR 0.50–20/m2 for the permanent exclusion of a land plot from agricultural land
and EUR 0.005–0.20/m2 for the temporary exclusion of a land plot from agricul-
tural land. The amount of the fee depends on the quality of land.75
The government regulation stipulates some exemptions when the fees are
higher76 (e.g., in case of excluded vineyards) or when the fees are not paid (e.g.,
building drinking water facilities).77 However, we do not know how these fees have
been stipulated, in other words, whether it is a result of economic and environmen-
tal analysis or whether it was only stipulated accidentally. If taking into account the
historical analysis of the development of fees, we may consider the latter possibility
to be more probable.
The fees for the exclusion of agricultural land were first imposed in Slovakia in
1976. They have been changed several times (in 1984, 1993, and 1996). They have
also been canceled on one occasion (in 2004), although the fees were reintroduced
4 years later. Government Regulation 376/2008 Collection states that “the experi-
ences showed that the cancellation of fees was not in favour of agricultural land
being sustained for future generations.”78
However, the fees were not imposed overall but only with regard to agricultural
land of the best quality. Agricultural land was divided into nine quality groups. The
fees were only paid if the excluded land plot belonged to the first, second, third, or
fourth quality group of agricultural land.79 The remaining agricultural land was free
of fees. The government regulation was revoked, and the new one was adopted,
namely Government Regulation 58/2013 Collection, as mentioned above.80 This
regulation expanded the obligation with regard to the payment of fees for all nine
land quality groups. The explanatory report does not provide any reasoning for such
an expansion. Generally, any explanatory report81 has not provided an analytical
reasoning of the amount of fees or their extent. According to the data from the
Geodesy, Cartography and Cadastre Authority of the Slovak Republic, we can
observe the development of the excluded area of agricultural land between 2005
and 2013 in Slovakia (Fig. 6).
According to Fig. 6, we can conclude that the frequent changes in fees are not
favorable. From 2005 to 2007, when the fees were canceled, about 2300 ha per year
75
Slovakia, Government Regulation 58/2013, “Collection on the Fees for Agricultural Land
Excluding Illegal Occupation of Agricultural Land.”
76
Art. 2, of Government Regulation 58/2013.
77
Art. 4, of Government Regulation 58/2013.
78
Explanatory Statement to the Government Regulation 376/2008 Collection on Fees for Agri-
cultural Land Excluding Illegal Occupation of Agricultural Land. http://www.justice.gov.sk.
Accessed 25 June 2014.
79
80
81
Slovakia, Explanatory Statement to the Government Regulations 58/2013 Collection on Fees for
Agricultural Land Excluding Illegal Occupation of Agricultural Land.
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6.000
excluding agricultural land in 5.545
5.421 4.841
5.000
3.642 4.278
4.000
3.479
3.000
ha
ha
2.000
1.784
1.000
0
2005 2006 2007 2008 2009 2010 2011
Fig. 6 Development of the excluded areas of the agricultural land in Slovakia in ha in the period
2007–2013 (Geodesy, Cartography and Cadastre Authority of the Slovak Republic, 2015)
Table 2 Development of the land structure in Slovakia 2007–2014 in ha (Geodesy, Cartography

and Cadastre Authority of Slovak Republic, 2015)
Decrease/Increase Total
decrease/
Type of lands (ha) increase
2007 2008 2009 2010 2011 2012 2013 in 2007-
2013
Arable land -1,461 -4,044 -3,869 -1,350 -980 -1,914 -610 -14,228
Hops -4 -10 -1 1 -3 -2 -2 -21
Vineyards -71 15 -118 -49 -94 -33 -214 -564
Gardens -93 -84 -73 -34 34 5 -121 -366
Fruit groves -202 -230 -103 -223 -176 3 -68 -999
Permanent
grasslands 47 -1,067 -1,383 -1,986 -2,260 -2,900 -3,263 -12,812
Agricultural land -1,784 -5,421 -5,545 -3,642 -3,479 -4,841 -4,278 -28,990
Forest land 203 1,115 586 2,407 1,086 1,723 1,309 8,429
Water areas 331 919 70 116 3 0 100 1,539
Built-up areas 839 1,128 882 648 1,378 632 706 6,213
Others 588 2,390 4,021 397 980 2,403 2,165 12,944
were excluded from agricultural land. However, the expectations of the land market
subjects on imposing the fees again caused an extreme increase of excluding the
areas of agricultural land in order to avoid paying fees. The new government
regulation in 2013 caused the same situation. The excluded area of agricultural
land increased in 2012, compared to previous years. Table 2 describes the devel-
opment of the land decrease (or increase) according to the land type.
The most fertile land (arable land) was excluded for nonagricultural purposes,
especially in the years when the changes of legal regulation were expected.
We assume that the main role of lawmakers should be stabilization of land
policy in the field of land protection; however, Slovak lawmakers evoked
uncertainty regarding land market subjects in terms of the frequent changes to the
fee policy. This has had a negative effect on the exclusion of agricultural land and
land protection. The main role of the fees is to avoid excluding land plots from
agricultural land; however, the frequent changes in the field, in terms of the fee
policy, have evoked the opposite effect. The policy against the exclusion of
agricultural land is an effective measure for land protection. Its strictness and the
right amount of the fees can protect agricultural land more effectively than the Law
on the Acquisition of Ownership of Agricultural Land, as mentioned in Sect. 3. On
the other hand, a stable land policy is necessary, given that the permanent changes
in the legal regulations cause uncertainty and chaos with regard to the expectations
of the land market subjects and their behavior, which are different from the effect
that lawmakers expect in relation to the field of land protection. Therefore, the new
legal regulation should only be adopted on the basis of economic and environmental
analysis with regard to the followed objectives, which are mainly to protect
agricultural land and farmers’ access to land in order to promote food sovereignty.
Agricultural land is a natural resource that should be protected for future genera-
tions all around the world. Agricultural land plays an important role in the case of
national food sovereignty. For this reason, agricultural land needs to be protected.
Several initiatives at the international level have sought to create a guiding frame-
work of obligations and rights concerning how to protect the land, as introduced
earlier.
This issue has also been addressed by Slovak lawmakers at a national level.
However, the questions that need to be asked relate to the quality and effect of this
legislation. Slovak lawmakers’ intention was to protect the land, but the results
either do not meet this objective or have had the opposite effects. Therefore, a
careful analysis of the impact is needed more than rushed legal regulations, which
can cause problems that outweigh the desired effects. Law 140/2014 Collection on
the Acquisition of Ownership of Agricultural Land is the best example of a rushed
legal regulation. According to the explanatory report, this law should avoid spec-
ulative land transactions and follow the misuse of ownership in relation to land
users, especially in the case of inadequate land rent payment. The land market is not
able to ensure land protection and land management. This is proven by the fact that
the area of agricultural land is still decreasing. However, we assume that there are
more effective legislative measures concerning how to achieve these objectives,
e.g., stricter conditions against the exclusion of agricultural land plots for
nonagricultural purposes and the right amount of fees for excluding such land
plots. However, such fees should not be the object of permanent changes. The
case of Slovakia has shown that relatively frequent changes (every 4 years) lead to
the opposite of what the law sought to realize.
www.ebook3000.com
At the international level, especially at the European Union level, the question
should be raised as to whether it is reasonable, and on what basis, to include
agricultural land in the context of capital and the free movement of capital. The
agricultural land—as a natural resource, the natural heritage of all people in the
world, the basic resource for food sovereignty, and a nonsubstitutable resource—
needs a special regime of protection outside the scope of the free movement of
capital in the world.
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LITES – Legal Issues in

Transdisciplinary Environmental Studies 1

More information about this series at http://www.springer.com/series/15038

Silvia Rolandi Andrea Saba

ISSN 2522-5049 ISSN 2522-5057 (electronic)

Library of Congress Control Number: 2017956119

© Springer International Publishing AG 2017

Printed on acid-free paper

This Springer imprint is published by Springer Nature

Legal scholars are paying increasing attention to agricultural issues. Nevertheless,

Pisa, Italy Mariagrazia Alabrese

Agricultural Law from a Global Perspective: An Introduction . . . . . . . 1

Part I Environmental Protection and Food Security at the Cross-Roads

Part II Emerging Consumers’ Interests: Answers from the Agri-Food

Insects in Agriculture: Traditional Roles and Beyond . . . . . . . . . . . . . . 163

Part III Land Tenure, Investment Law and Agriculture

© Springer International Publishing AG 2017 1

2 What Is Agricultural Law?

2.1 Identifying the Meaning of Agricultural Law Through

2.2 A Second Pattern: Characterizing Agricultural Law

An alternative approach to defining agricultural law without focusing on a legal

2.3 Agricultural Law as an Autonomous Branch of Law

The aforementioned Hungarian definition of agricultural law is of particular interest

3 From “Food and Fiber Production” to a Broader Content

4 The Shape of Current Agricultural Law

The reference to a multilevel legal framework refers to international, regional,

Elisa Morgera and Andrea Saba

© Springer International Publishing AG 2017 15

As recommended in the 2030 Agenda on Sustainable Development,7 CBD Parties

2 The Structure of the Part9

The role of law in supporting sustainable agricultural production, as well as

It appears likely that the world will continue to experience a convergence of

© Springer International Publishing AG 2017 19

provide ecologically meaningful and sustainable solutions to the aforementioned

The following subsections consider some of the overarching developments that

2.1 International Definitions

From a legal perspective, a precise meaning of food security is not entirely

2.2 Food Security Under the CAP: Objectives and Outcomes

2.3 The Ecological Effects of Early Approaches to Food

As pointed out in the Community’s very first Environmental Action Programme

3 Sustainable Agriculture: A Cornerstone of the CAP or

3.1 The Influence of the Sustainable Development Paradigm

3.2 The Successive ‘Greening’ of the CAP

characteristics of the areas concerned, including soil and climatic condition,

performance, indicators and baseline levels’.101 Likewise, BirdLife International

3.3 The 2013 Reforms: Framing the Objective of Sustainable

The objective of ‘sustainable agriculture’ gained further standing following the

biodiversity and climate change adaptation objectives’.108 Likewise, a commentary

4 Recognising the Ecological and Perpetual Dimensions

Notwithstanding the increased political commitment to environmentally sustain-

4.1 The Looming Challenges to Food Security and the (in)

is fundamental uncertainty as to what extent changes to the Earth system will

4.2 Sustainable Agriculture: (re)Discovering the Link

4.3 Looking Ahead: Ecological Integrity a Fundamental

Andreev K et al (2013) Demographic components of future population growth. UN Department of

European Commission (2010a) The EU nitrates directive. http://ec.europa.eu/environment/pubs/

Maxwell S, Smith M (1993) Household food security: a conceptual review. UNICEF/IFAD

A.G. Micara (*)

© Springer International Publishing AG 2017 53

trade and investment agreements that include provisions on intellectual property

2 The Trips-Plus Era

In order to promote innovation in plant breeding, the 1995 TRIPs Agreement

2.1 UPOV Accession