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Über dieses Buch

This book focuses on the social and environmental issues being addressed by agricultural law within the current globalised system.

What is agricultural law? Agricultural regulations concern and affect essential human needs and values that must be dealt with by pursuing a comprehensive and coordinated global approach. By tracking the developments in this context, this book explores the new challenges that agricultural law needs to address in order to frame emerging dilemmas.

International governance of natural resources and their role in addressing food insecurity is the object of the first Part of the volume, which deals with sustainable agriculture and agro-ecosystem services in connection with the food security issue.

The second Part focuses on the regulation of food as the main product of agricultural activity, and explores the answers that the law can provide in order to accommodate consumers’ interests and concerns (inter alia, novel foods, animal welfare, direct sales and e-commerce).

The third Part examines the social, environmental and legal consequences of a renewed interest in agricultural investments. Further, it analyses the evolution and the interplay between different legal systems with regard to land tenure, environmental concerns and investments in agriculture.



Agricultural Law from a Global Perspective: An Introduction

This introductory chapter sets the scene for the following contributions. It starts with the basic question, “what is agricultural law?” and traces the changes in its content. The chapter looks at the academic theories used to define what agriculture means, together with the objectives of this branch of law. It also provides an overview of the new challenges that agricultural law will address, in order to frame the new and emerging issues within a global perspective. Agricultural regulations affect essential human needs and values, which need to be understood and dealt with from a comprehensive and coordinated global vision. A system approach is also needed in order to understand the web of interdependent issues involved in the agri-food sector and the related regulations. The shape of current agricultural law is thus 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.
Mariagrazia Alabrese

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

The chapter introduces the first part of the volume that is dedicated at analysing the multifaceted implications of environmental protection and food security at the crossroads with agricultural law. The chapter discusses the complex role played by the law in supporting sustainable agricultural production that can contribute to environmental sustainability and to fostering food security. In order to boost further research in this area of law, the chapter explores the role of the Convention on Biological Diversity and of the guidance recently adopted on mainstreaming biodiversity in the agricultural sector.
Elisa Morgera, Andrea Saba

The Ecological and Perpetual Dimensions of European Food Security: The Case for Sustainable Agriculture

This paper explores the objective of sustainable agriculture under the CAP and its crucial role for ensuring long-term productivity and food security for the benefit of the 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 existing agri-environmental measures 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 agriculture. These were explicitly introduced to give expression to the underlying principle of sustainable development, but important questions remain as to their ability to provide ecologically meaningful and sustainable solutions to the aforementioned challenges.
Alicia Epstein

International Law on Plant Genetic Resources for Food and Agriculture: Towards a New Balance?

This chapter examines the provisions concerning intellectual property rights and genetic resources’ protection included in bilateral and regional trade agreements. The aim is to assess to what extent these provisions affect the access and diversity of plant genetic resources for food and agriculture, which are crucial features to tackle food security, climate change, and biodiversity. Particular regard is devoted to agreements concluded by the EU, the US, EFTA, Japan, and Canada, which are developed countries that wish to protect their industries abroad, as well as those concluded by Peru and Colombia, two countries rich in genetic resources. It will be shown that those agreements restrict TRIPs’ flexibilities and could have a detrimental impact on the access to and diversity of plant genetic resources for food and agriculture. The chapter thus focuses on the extent to which other international instruments could affect the TRIPs-plus provisions in bilateral and regional trade agreements so as to mitigate their impact on access and diversity of plant genetic resources for food and agriculture. The possibility to interpret relevant provision in the light of other international instruments aimed at protecting plant genetic resources is limited. Moreover, the Convention on Biological Diversity and the International Treaty on Plant Genetic Resources for Food and Agriculture do not provide effective safeguards. It should therefore be considered whether human rights could lead to a new balance of international law on plant genetic resources. In fact, there could be a conflict with the right to food, and the draft UN Declaration on the rights of peasants and other people working in rural areas would entitle farmers to the right to seeds and to biological diversity.
Anna G. Micara

Results-Based Agri-Environmental Schemes for Delivering Ecosystem Services in the EU: Established Issues and Emerging Trends

Several agri-environmental schemes have been implemented in the last 20 years in Europe. In general, such measures are designed to encourage farmers to protect and enhance the environment through managing agricultural activity, by rewarding farmers for the service of implementing agri-environment commitments. In recent years, the European Union is showing an increasing interest for identifying more cost-effective means of paying for ecosystem services. An option under consideration is the implementation of results-based schemes, where farmers are rewarded not for performing activity-based standards but for achieving set environmental outcomes. From early 1990s, results-based schemes have slowly been increasing in number and scope, even if the majority remains located in northwestern Europe. The paper is aimed at increasing the legal understanding of results-based agri-environmental scheme for the delivery of ecosystem services. It explores the legal emerging concept of results-based measures and the issues that arise when they are put into practice. In conclusion, the paper distils what can be learned in terms of scaling up the implementation of results-based agri-environmental measures for the enhancement of ecosystem services in the EU.
Andrea Saba

The Legal Instruments for Agri-Environmental Goals and the Influence of International Factors: The Case of Swiss Agricultural Policies

After decades of focusing on the increase of production, since 1990 Switzerland’s agricultural policy has brought about significant changes in order to foster the protection of the environment. The changes are mirrored in the Swiss constitutional provisions on the environment and agriculture. They lay down the bases for the main legal instruments—primarily binding regulation on the protection of water, soil and air, as well as monetary incentives in the form of direct payments—for the implementation of the Swiss agri-environmental goals. In comparison, international provisions only play a minor role. However, in times of market liberalisations, international trade and trade law will increasingly influence Swiss agriculture and its agri-environmental goals. More than ever, Swiss policymakers will have to find a balance between the interests of farmers to increase their production and the implementation of laws protecting the environment. When it comes to the latter, the most recent official federal agricultural policies may lead to the conclusion that the legislator does not deem it necessary to further develop the agri-environmental goals and the current status quo of agri-environmental protection.
Christa Preisig

Emerging Consumers’ Interests: Answers from the Agri-Food Regulation


The Emerging Interests of Consumers: Answers from the Agri-Food Regulation

This chapter introduces the part dedicated to answers from agri-food regulation to emerging interests of consumers.
The essays contained in this part are focused on the relationship between tradition and innovation in food production and highlight the controversial coexistence of these two (apparently) opposed faces of the food chain.
The author of this introduction underlines that the “image” of the consumer is a guiding thread (or a common element) to different aspects of this issue, considering that the consumer is the final target of information and safety rules.
In fact, the lack of a clear definition of the characteristics of consumer as contracting party in transnational commercial relationships and the high level of abstraction on this subject in EU law determines juridical uncertainty, taking into account the increase in business of consumer international trade.
The author concludes his essay by recommending a solution at the international level, which needs to be more consistent with the effective dynamics of consumption.
Vito Rubino

Insects in Agriculture: Traditional Roles and Beyond

Insects have always represented a key factor for agriculture since crop production has constantly depended on pollination. In recent years, the use of pesticides, the reduction in land availability, the changes in environmental conditions, and the rise of invasive species endangered the traditional pollinators’ life. The economic and ecological importance of these insects led the European Commission to carry on a specific policy to protect bees.
However, pollination is not the only significant role that bugs can play in agriculture. Beneficial insects are also successful “weapons,” when associated with other forms of crop protection, in the integrated pest management. This function is of paramount importance when referring to organic agriculture, where insects are further expressly included in the notion of “animal production.”
Insects can, however, play additional innovative roles in agriculture, turning to be promising solutions for the emerging issues concerning the environment, and the sufficiency of feed and food supplies.
Any innovative approach leads to new questions, in a law perspective. Starting from the traditional roles of insects in agriculture (pollination and pest management), the paper will focus on their newest functions (insects as waste reducers and as sources of feed and food), paying particular attention to the emerging relevant legal issues, both at an international level and at an EU level: the existence of harmonized regulatory frameworks, questions related to animal welfare, organizational aspects of the breeding systems, and above all safety and environmental concerns. It will finally draw some conclusions, wondering what aspects could be improved and to what extent.
Valeria Paganizza

Animal Welfare Standards in Agriculture: Drivers, Implications, Interface?

Farm animal welfare standards have been adopted by major public bodies and also in a proliferation of private farm assurance schemes. This public/private dichotomy raises questions concerning the relationship between the public and private institutions and their respective animal welfare standards. This chapter explores the interface between the international public animal welfare standards of the World Organisation for Animal Health (OIE) and private global standards of animal welfare. Principles and standards of animal welfare based on science and applicable to food-producing animals are contained in the OIE International Terrestrial Animal Health Code (TAHC). Private animal welfare assurance schemes purporting to promote the added value of animal welfare standards in the agri-food chain have evolved alongside these intergovernmental standards.
The implications of standardisation, a voluntary marketing tool, are examined in the context of animal welfare in the global agri-food chain. Voluntary/de facto mandatory private animal welfare standard and certification schemes do raise, potentially, a number of regulatory concerns. Emphasis is placed on the steps that are being taken to ameliorate the tension should private animal welfare standards conflict with the public-science-based standards of the OIE. This chapter appraises the associated role for coordinated governance, a soft law regulatory tool, and introduces the capacity of standardisation to act as a bridge between the public/private dichotomy of animal welfare standards. It focuses on the theoretical underpinning and regulatory context of the emerging public and private interface in transnational animal welfare governance in the global agri-food chain.
Diane Ryland

Legal Pluralism and the Regulation of Raw Milk Sales in Canada: Creating Space for Multiple Normative Orders at the Food Policy Table

In Canada, the sale and distribution of raw milk is prohibited. Public health officials warn that it exposes consumers to unacceptable food safety risks. Raw milk advocates counter that pasteurization reduces milk’s nutritional properties and that individuals should have the right to consume foods of their choice. Existing legal scholarship on raw milk focuses on two main lines of reasoning: a personal autonomy argument that individuals have (or should have) a right to food choice and a division of powers argument about the rights of regional authorities to regulate local food systems. Missing from the debate is a serious engagement with the fact that food law and policy is about more than consumer safety. The raw milk movement is doing more than demanding a right to a particular product, it is creating an alternative normative order for food systems that challenges the dominant model of industrial agriculture. This paper suggests that the preferences of raw milk advocates should not be so quickly dismissed by regulatory officials. The failure to take seriously the movement’s dissenting opinions means that critical perspectives on social, ecological, and economic aspects of agriculture are not being heard at the food policy table. This chapter explores how the principles of legal pluralism can assist legal orders to better deal with fundamental disagreement. Applying these principles to the raw milk debate, it argues that Canada’s regulatory authorities should engage with the perspectives of multiple normative orders to design more sustainable and democratic food systems.
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

This paper was conceived to underpin possible interesting legal questions arising in relation to information provided to consumers, in the specific field of food e-commerce. The first part, the introduction, is going to show how in a short amount of time technology, combined with changes in consumer habits, has opened the door to the development of e-commerce and also to food e-commerce as a new way to trade. The paper will explore, through the observation of marketing studies, what influences a consumer to buy online instead of offline and the relevance of food information on this process. The second part will then analyze the European current legal framework applicable to the labeling requirements that should be fulfilled on prepacked food sold through e-commerce. This analysis is meant to provide an overview regarding the recognized importance of the object of the paper and the elements to figure out how existing regulation, at the European level, is not clear enough, possibly representing an obstacle for food e-commerce development. The chapter finds that the lack of clarity does not help build consumers’ trust in online sales, creating also a barrier for producers to try to use this tool to sell their products directly.
Silvia Rolandi

Land Tenure, Investment Law and Agriculture


Land Governance, Investment Law, Agriculture, and the Rights of Local Populations

This chapter introduces the third part of the volume, which deals with the conundrum of the regulation of investments in land and agriculture and how this relates to the protection of human rights. The chapter begins with a definition of land grabbing and an overview of the regulatory branches that overlap in the field of agricultural investment. It then presents the most recent soft law and jurisprudential development in the protection of the land rights of indigenous peoples and other rural communities.
Adriana Bessa, Margherita Brunori

Access to Land and Security of Tenure in the Resolutions of the United Nations General Assembly

Land governance has historically covered a crucial position in the sphere of national sovereign power and can be described as a matter “which is essentially within the domestic jurisdiction of any state.” Nevertheless, since the early years, the United Nations, through its bodies and agencies, has been releasing reports and recommendations on the governance of land. 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/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. What emerges from the analysis 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. Conversely, what appears also quite clearly is that there is a lack of uniformity in the terminology used.
Margherita Brunori

Global Land Rush, Water Grabbing and the Human Right to Water

Large-scale land acquisitions, commonly known as “land grabbing,” are in most cases driven by the need for freshwater resources. There is evidence that corporations and governments are increasingly investing in agricultural land in order to meet the growing demand for food and biofuel. Since the production of both food and biofuels requires freshwater resources, land investors typically look for access to water. Large-scale land-related deals include unlimited water rights in favor of the investor, to the detriment of other users, especially local people, who lose their access to water despite the fact that access to water resources is a basic human right that cannot be denied. Moreover, most of these deals are closed with no, or very limited, consultation with local populations, and without fair compensation. Investors thus act with no consideration for the social and environmental impact of the land acquisition and water grabbing.
Francesca Spagnuolo

The Regulatory Vicious Circle of Investment Operations in Agriculture

Starting from an analysis of contractual clauses included in a large-scale investment contract in land between Cameroon and a private company, this paper aims at inferring general conclusions on the multilevel regulatory framework applying to investment operations in land. After having identified how domestic law and international law interact at the contractual level, the study moves to the analysis of those provisions, namely umbrella clauses and stabilization clauses, which blur the lines between contract and treaty claims, and impact on the pursuit of host States’ public interest. The “chilling” effect of these clauses on host States has further triggered reflection onto whether international law, in its entirety, applies to investment operations and to what extent. Finally, beyond traditional treaty interpretation methods, this paper tries to offer an overview of different harmonization mechanisms, which might prove more effective in the accommodation between investment and non-investment obligations.
Federica Violi

Between Customary and Statutory Tenure: Understanding Large-Scale Land Acquisitions in Zambia

The last decade has witnessed an increasing interest by foreign investors in the acquisition of agricultural land in the developing world. This phenomenon has soon come to be defined as land grabbing due to the controversial nature of the land deals and to their impact on the livelihood of rural populations. According to recent estimates, more than the 60% of these land acquisitions have taken place in sub-Saharan Africa, a region characterized by inherently pluralistic legal systems.
In line with the regional trends, Zambia has been targeted by foreign investors interested in acquiring large tracks of land for agricultural purposes. The land tenure system of the country is the complex outcome of hybrid legal orders that stratified over the centuries. In particular, the role of traditional authorities, i.e. chiefs, in land management is still prominent as the 94% of land is officially classified as “customary.”
By adopting a legal pluralist perspective, this chapter looks at the dynamics between customary and statutory tenure in Zambia in light of contemporary land-grabbing processes. It provides a legal analysis of the framework in which land investments are negotiated, by outlining the land tenure system of the country. In particular, this chapter focuses on the process of alienation of land from the customary domain in the case of foreign acquisitions by outlining the procedures and guarantees envisioned by national legislation. Together with a critical discussion of the land legislation in Zambia, it illustrates large-scale acquisition cases and incorporates insights from ethnographic fieldwork in three districts of the country.
Margherita Baldarelli

Agricultural Land Ownership as Food Sovereignty: The Case of Slovakia

Agricultural land plays an important role in national food sovereignty. Slovak lawmakers are trying to solve the problem with regard to access to food in the course of current legislative activities. So the concepts of food sovereignty as evaluation terms for land governance in Slovakia are preferred in spite of the fact that food security and right to food are more established. On the one hand, the concept of food security has not focused on access to food; rather, the central issue in international debates only concerns the amount of food that people are able to access. On the other hand, food sovereignty includes also the right of people to define their own food and agricultural systems. Moreover, food sovereignty is being incorporated into many official documents related to the human rights that are relevant despite their nonbinding nature. The current paper provides the analysis of the situation in agricultural land ownership after almost 11 years since Slovakia’s integration into the European Union and analyzes the current national legislation in order to point out the possible impact on the access to land and on food sovereignty of the country as well. The paper also points out the effectiveness of the legislative measures that should protect the land on the national level regarding the compatibility with the European Union law.
Katarína Dirgasová, Jarmila Lazíková
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