To write law, vocabulary and grammar are needed. The vocabulary designates concepts conveying the values we choose to promote and the grammar is the way to connect these concepts to one another, whether they be ‘economic liberty’, ‘political liberty’, ‘people’s dignity’, ‘individual responsibility’, ‘sustainable development’, ‘food security’, ‘private property’, sovereignty, or common goods. To apprehend this vocabulary and grammar, we would prefer to speak in terms of ‘law’ (or rules) rather than ‘regulation’ or ‘controls’, in order to avoid the confusion often made (and which have resulted in the worship of some of Bacon’s ‘idols’). So let us assume that ‘law’ differs from ‘controls’ in the same way as the Highway Code differs from ways to keep the traffic flowing. Prices or speculation can be ‘controlled’ the way temperature is, that is by setting limits, upper and lower. Controls aim to steady or balance a complex system. Though necessary, they are far from being enough. Law (like ‘controls’) sets behavioral principles and rules. Through law, social values will be promoted to guide the economy the way society wants it to be, somewhere between maximizing profits and giving priority to people’s dignity.
Setting the goal of food security
International law currently governing natural resources exploitation and trade does not aim at securing food security worldwide. Its goals are economic and it relies on two principles: the sovereignty of States over their natural resources and free international trade . The laws currently in force partly match the WTO’s, without any specificity regarding agricultural natural resources, subject to the successful outcome of the Doha Round of negotiationsg. The laws are also partly the result of international agreements and treaties, as well as an increasing number of bilateral treaties . Concerning food resources, it is the organization of fishing and the sharing of halieutic resources that are mainly concerned, precisely because when dealing with the seas and oceans, the allocation of fishing grounds cannot be achieved simply by applying the principle of State sovereignty. Basically, international market law is sufficient when applied to what has a price but not to what has dignity, to quote Kant once more.
We should not hesitate to qualify food security as a priority and a non-negotiable goal. This is justified simply if starving to death is to be outlawed and if it is a condition for world peace, as it was at the Hot Springs conference in 1943. It has been at the core of the language of the FAO ever since, but it has not broken through as law. FAO defined this priority in the worldwide summit on food in 1996: ‘Food security is provided when all people, at all times, can economically, socially and physically have access to enough safe, nutritive food to satisfy their nutritional needs and food preferences to enable them to live an active, healthy life’ .
On the other hand, food security also consists in preventing food crises. In this respect, the billion or so people who do not have sufficient access to adequate food should be seen as the victims of a permanent food crisis. Given this, food security should appear in two forms. One of these would be devoted to all such victims, just as social protection is organized in the form of ‘social security’. The other one should consist in designing laws governing the production and trade of food agricultural raw materials that take into account the need to feed 9 billion people by 2050.
Thus conceived, the goal of food security has direct repercussions on the legal treatment of natural resources. Land is a limited, non-extensible commodity. What it produces, though renewable, can become exhausted. Fisheries are the same. So are forests and water. Limited and exhaustible natural resources should be considered as a patrimony or capital and not as goods, especially not as conventional ones. More precisely, their exploitation and trade should be governed by public policies varying from state to state, recognized by international law, thus removing them from sheer market forces. These rules should take into account the fact that the vital character of these food resources gives them a general interest and common dimension at the outset.
Defining a sustainable development strategy
The Geneva, Rome, and Copenhagen negotiations that took place in late 2009 linked together the destinies of an economic issue - the development of international trade and commerce, an environmental issue - global warming, and a social issue - poverty and its links with famine, malnutrition, and food crises. Now these three issues precisely match the three pillars of sustainable development: economic dynamism, environmental care and social progress: Profit, Planet, People.
It will not be a surprise to find here the three imaginary commodities whose history has been highlighted by Polanyi: money as a way to measure profits, land as an issue in protecting the planet and labor as a means for people to secure an income and thus food for themselves and their families. While the global self-regulating market consists in merchandising land, money, and labor, global sustainable development for its part relies on considering the economic, environmental, and social dimensions as indissociable. This means each political action or decision should take into account the three dimensions together, and should be responsible for the consequences of doing so.
Yet history shows that such an ‘indissociation’ cannot result from a great self-regulating market. Sustainability of development cannot result from a purely economic, scientific, or ethical approach. It can only result from a politically expressed, legally organized will .
However, the goal of legislation should not be to put an end to either the great market or free trade. In the wake of Max Weber’s doctrine, it is obvious that there is not one single legal system suited to free trade . We simply have to abandon the ‘idols’ of self-regulation and deregulation which have prevailed in almost all economic sectors since the 1970s. The problem with the three post-war conferences (Hot Springs, Bretton Woods, and Philadelphia) is that they were dissociated from one another. The same problem occurred in November and December 2009 with the separate Rome, Geneva, and Copenhagen negotiations - they eventually failed. This was inevitable: it makes no sense to restrain the unbridled exploitation of natural resources in Copenhagen if their free trade is promoted in Geneva at the same time. And such promotion itself is pointless if we are to work towards the goal of food security in the long run. Food security has no future if what is discussed separately in Rome is neglected in Copenhagen.
To reach its objectives, the law we have to imagine must forge links between economic laws and dynamic trade, the laws of science and technical progress, moral laws, and human values.
Therefore our first problem is the current segmentation of institutions, conferences, negotiations, policies, and decisions. The great market model can only work if it reaches a balance between supply and demand for all goods and services. To do so, we should let the forces of supply and demand act for land and its resources, for money, and for labor. But, with the constant interplay of the various markets and the successive crises, history has shown that this is ineffective. The homo oeconomicus is only rational to a certain extent and on condition he has enough food and a safe environment to live in. This is the ‘indissociation’ that the sustainable development concept allows us to implement. Given this, in these conditions and within the framework established by the United Nations General Assembly , what legal resources or instruments could restore ‘what has dignity’ to its rightful status?
Structuring the legal resources to be implemented
There is a fairly wide range of legal resources available to enable us to come as close as possible to the goal of food security while implementing a sustainable development strategy.
To define them and choose among them, it must first be stated that a sustainable development strategy provides us with at least three categories of values that have been shared by the international community since the Rio declaration of 1992. They constitute a strong basis which avoids immediately confronting the question of the universalism or relativism of values . The legal resources we decide upon and structure should then enable economic dynamism, health and environmental care, and social progress to be achieved. Besides, the instruments we design must be based on legal concepts capable of ‘sounding the conscience’  as well as appealing to reason.
Up to now, freedom has been favored: free access to resources, free exploitation, free trade, and consequently freedom to do business, contractual freedom, free competition, free movement of goods, capital, and peopleh. Some say failures, poverty, and famine can be explained by restrictions to this freedomi. Others, however, think that free trade in natural resources accounts for the problem and the food crises. The main point surely is to lend a legal, constraining form to the limits on freedom, particularly by exploring means of maintaining public policy which that legal form or instrument should target. We can thus try to design an internationally-dimensioned concept of ‘food public policy’ (or food ‘ordre public’), on the model of the WTO’s TRIPS agreement for patentsj. Regarding the freedom of imports and exports, of economic price-setting mechanisms, of speculation on commodities, an ‘order’ has to be imagined and made ‘public’. Economic liberties and legal responsibility also have to be concretely and conceptually re-associated, these values having been largely dissociated since the series of world crises that started in 2005–2006.
Another resource, which has been extensively tried and tested, is basic rights. There are already a considerable number of texts which lay them down but they pose the problem of a lack of efficiency in terms of positive law. Things tend to be different, relatively speaking, when a judge or a court is instituted in parallel to enforce the rights which have been laid downk. The basic rights resource is nevertheless very symptomatic of the vital need to ensure each individual’s food security. That is why it is promoted by the UN’s special rapporteur on food rights to fight the excesses of free tradel. But an effective legal system remains to be defined to defend farmers’ access to land and people’s access to food .
A legal framework for the market can also be imagined based on the concept of ‘sovereignty’ in the form of both access to land (land sovereignty) and access to food (food sovereignty).
Land sovereignty determines the means States can use to keep natural resources, particularly agricultural lands, under control, particularly seeking to prevent their capture by public or foreign powers. This form of sovereignty is a reaction to a new kind of colonization consisting of foreign states or companies buying up developing countries’ productive lands. FAO has made proposals supporting the idea . However, these proposals need to be clarified, particularly by designing model contracts preserving the rights of local populations and the interests of host states . The food security of the countries involved requires all lands to be available to populations living on the states’ territories. The corollary of this State land sovereignty is the obligation on these states to provide their inhabitants with the means of subsistence. Besides, experience shows that grabbing these lands is often an opaque process, which mainly benefits the capturing investor: a minimal price is paid for the land, legally or not, before or after taking it, and it is at best unclear who the final payee is. Furthermore, the investor’s commitments regarding local employment, the species of crops to grow and the destination of the produce are often vague. Eventually, once the contract comes to an end, the investor often leaves a land which has been impoverished by overexploitation without being environmentally restored.
Food sovereignty, on the other hand, determines a state’s ability to define public policies designed to provide the population with enough healthy food. This is the means favored by Via Campesina which has developed a thorough, demanding food sovereignty concept which extends to a full set of public policies to be implemented to provide the population with food: farmers’ access to land, water, seeds, and loans; priority given to local produce to feed the population; the right of farmers and consumers to choose the methods of production and the products consumed; the right of states to protect themselves from low-cost imports by banning or taxing them; populations having their say in political decisions concerning agriculture; protection of women’s rights, and so on. In addition to these proposals, which merit thorough debate, it is at least necessary to define the legal tools necessary for the implementation of an agricultural protectionism limiting the power of the WTO and the globalization of trade. In this respect, the concept of food autonomy, compatible with maintaining a system of multilateral trade, would enable states to keep a measure of legal discretion to adapt their agricultural and food policies to their own particular needs. So in the context of sovereignty and autonomy, there is a means to legally regulate exploitation and trade in food natural resources while avoiding excesses. However, a population cannot be confined within a country’s borders without the necessary food. Consequently, a state cannot be deprived of the right to make the necessary decisions to feed its population, and both national and international laws should take this into account.
In compatibility with the concepts of sovereignty and autonomy, ownership and the qualification of ‘common goods’ should be explored as ways to access resources. Several definitions of common goods have been proposed in a thriving, mainly economic, literature . Yet the concept is often assimilated simplistically, as Garett Hardin has done , to merely being in competition with private property . In reality, deforestation, excessive inputs, wastage of water, or overexploitation of resources can occur under conditions of common goods as well as private ownership. Ownership can be private or public, individual or collective, absolute or relative, without competition or open to coexisting uses. It is therefore possible to optimize a right to ownership which regulates the owners’ power in favor of the common, and others’, interests , a right which defines a way to manage ownership that respects the specificity and scarcity of the natural resources concernedm, or even a right that bestows a social function on ownership . Much in the same way, the management of common goods can be legally organized to guarantee a chosen yield, by preserving the quality and quantity of resources. The main point is the values which are promoted rather than the legal means used.
The choice between ownership and common goods also has to be made when turning our attention to incorporeal goods in the field of ‘intellectual property’. Patents on living organisms, biodiversity or natural resources , plant breeders’ rights, brands, and quality signs are legal instruments whose power is underestimated and whose legitimacy is rarely questioned as though it were obvious. In fact, not everything should be eligible for ownership, particularly when goods are necessary for people to live. In this case, it should be forbidden on principle for an owner, whoever he or she might be, to have a power of monopoly on goods which people depend on for their very lives. But intellectual property is like any other property: it can be absolute or relative. International law currently provides few limits to intellectual property’s absolute scope. States can rule out an invention’s patentability so as to protect public order, health, and animals or people’s lives or to avoid serious environmental problemsn .They can more generally rule out patentability for plants, animals, and their breeding processes, providing they organize an alternative way to protect plant varietieso. Exceptions in the International Convention for the Protection of New Varieties of Plants (UPOV) also limit the breeder’s rights . Besides, the Convention on Biological Diversity provides for the fair, equitable sharing of benefits from the use of genetic resources .
Yet all these limits, exceptions and expectations which could set limits to the ‘inventor’s’ monopoly remain ineffective or too vague to have a full, legal reach, or can be neutralized in contracts between the owners of these monopolies and farmers. There is thus considerable progress to be made in deciding what should be ‘common goods’ as well as in regulating the powers and rights of the ‘owner’ of the variety or characteristics of the new animal or plant.
The intellectual property resource is all the more promising as it enables us to imagine an analogical transposition of the so-called right of cultural exception to the issue of food. Cultural exception is an international legal concept aimed at making culture an exception in international treaties and particularly in the World Trade Organization. This exception thus allows States the means to make their sovereignty prevail and to limit free trade in cultural products to the benefit of their national culture and cultural diversity. A food exception based on the same model is not impossible to imagine.
To conclude, regarding the food issues of trade in the land and what it holds, we have to go back to Hot Springs and supply law that would enable the implementation of the values that this quickly forgotten conference sought to enforce. If we do not, we cannot be sure that populations will accept for much longer that ‘what has a price’ triumphs over ‘what has dignity’. Better Hot Springs than spring riots.