International Agricultural Law and Organizations –

An Overview

 

Background

As international agricultural trade increases, international law becomes more important to agriculture and food production. For the purposes of this overview, “agriculture” includes all activities related to farming, including food production and distribution. As a result, there is considerable overlap between the areas of international agricultural law and international agricultural trade. This overview focuses on international law and organizations involved with agriculture. For a discussion of the issues surrounding trade, please visit the International Agricultural Trade Reading Room.

While world trade is one of the most important spheres of international law related to agriculture, agricultural and food issues can be raised in many other spheres of international law. For example, global environmental law can relate to agriculture in the use and maintenance of international waters, forest resources, and the atmosphere. International human rights affect agriculture in many areas, including agricultural labor, the right to food, ecological rights, and property rights. Another emerging area of the law that affects agriculture is the establishment and use of international dispute settlement mechanisms. An example of this is the process, validity and enforcement power of international arbitration and international organizations’ settlements of agricultural disputes. On a micro-level, international law is affected by states whenever they establish mechanisms to obtain compensation or reparation for international agricultural violations. And finally, universal and extraterritorial state jurisdiction is important in the cases of human rights and environmental violations on the territories of other countries.

International law is a broad subject that is commonly divided into several categories: public international law, private international law, and international facets of national law. Public international law guides the interactions of national governments and other actors as subjects of international law and international relations (international organizations, individuals in certain cases, etc.). The next sub-category, private international law, addresses the law that regulates disputes between private persons, natural or judicial, when the laws of multiple countries are implicated, which is a conflict of laws question. Finally, national law, in the context of international law, includes the domestic law of each country that regulates the activities of foreign persons within the borders of that particular country.

Traditionally, only states were recognized as subjects of international law. However, the proliferation and increasing role of intergovernmental organizations has substantially changed prevailing views on the parties involved of international law. Nowadays, international organizations actively participate in international rule- and policy-making, issue resolving, and enforcement mechanisms. The more developed intergovernmental bodies create their own legal environments, known as supranational laws. Likewise, public international law includes, in part, the law of the European Union, which is also recognized as supranational law. The role of international organizations in agriculture is significant. Some international organizations, such as the Food and Agriculture Organization of the United Nations (FAO) and International Fund for Agricultural Development (IFAD) were created specifically for dealing with world and regional agriculture and food issues, either as a whole or by focusing on particular areas of agriculture. In contrast, other international organizations (e.g., United Nations, World Trade Organization, and World Bank) were not created specifically to address agricultural issues, but instead have special departments, negotiation rounds or other projects dealing with issues related to world agriculture and food distribution.


Public International Law (ius gentium)

Public international law, also known as “law of nations,” has a very broad scope. It encompasses issues of states as the principal actors in the international legal system (criteria of states, state jurisdiction, territorial issues, states immunity and the legal responsibility of states in their conduct with each other, etc.), issues of law of international organizations (status, immunities, international responsibility, etc.), issues of treatment of individuals within state boundaries, a variety of human rights issues, issues of maintenance of international peace and security, arms control and use of force in international relations, issues of peaceful settlement of disputes, global environmental regulations, world trade, etc.

The sources of international public law are international agreements (conventions, treaties, covenants, pacts, protocols, charters, understandings, etc.), customary international law, general principles of law and well-recognized scholarship.


International Agreements

International agreements, also known as conventional international law, create law for the parties of the agreement. There are a multitude of international agreements relevant to agriculture. These agreements attempt to regulate how governments relate to each other on a host of issues. Trade agreements are among the most common types of international agreements that contribute to international agricultural law.

The General Agreement on Tariffs and Trade of 1947 (GATT) was an international agreement covering the sale of goods, including agricultural products. However, exemptions and exceptions for agriculture limited its effects. In 1994, as a part of negotiations that produced the World Trade Organization (WTO), an Agreement on Agriculture (AA) was reached that defined the trading rules that apply to international agricultural trade. The AA also set goals for the liberalization of international agricultural trade. Other agreements produced under GATT and the WTO impact international agricultural law, including the Agreement on Sanitary and Phytosanitary Measures (SPS) and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). TRIPS addresses and sets requirements for multiple agricultural and food areas (e.g., geographical indications, use of hormones, new plants varieties, transgenic plants).

Other trade agreements that contribute to international agricultural law include regional free trade agreements, bilateral free trade agreements, and issue-specific trade agreements. European Union agreements (e.g., Agreement between the European Community and the United States of America on sanitary measures to protect public and animal health in trade in live animals and animal products of 1989), Organization of American States agreements (e.g. Convention on the Inter-American Institute for Cooperation on Agriculture of 1979), African Union agreements (e.g., Phyto-Sanitary Convention for Africa of 1967), Association of Southeast Asian Nations agreements (e.g., Agreements on Agriculture and Forestry) and other agreements of supranational (and/or regional) organizations fall within the category of regional international agreements. Any agreement between multiple countries that regulates an issue regarding agricultural trade provides a further source for international agricultural law.

Other types of agreements that impact international agriculture include agreements on endangered species and environmental protection. Examples are: United Nations Framework Convention on Climate Change of 1992, North American Agreement on Co-operation for the Protection and Improvement of the Environment in the Border Area, European Convention for the Protection of Animals during International Transport.


Customary International Law

Customary international law is created by the customs of a particular country through repeated actions by the country, acceptance over time, and the belief that adherence to that particular action is required. When countries follow legal principles consistently out of a sense of obligation, the legal principles are eventually treated as binding customary international law.

A common area where customary international law impacts agriculture is in governing the use of resources that cross national boundaries. This can lead to disputes over water rights or the amount of irrigation water that can be removed from a river by an upstream state. Over time the upstream state might limit the amount of water its citizens may remove, creating a minimum water flow to the downstream state. After enough time elapsed, the upstream state may begin to view this minimum water flow as an obligation to be maintained. These circumstances would give rise to customary international law.


General Legal Principles

The general legal principles that are found in the major legal systems of the world can be used to provide a source of international law when agreements and customary law do not resolve the legal issue. This source of international law is based upon the idea that if a principle is found in multiple legal systems and is generally accepted, then it is likely to be appropriate to guide the conduct of nations. General principles of law may be also found in international declarations. For example, the Rio Declaration on Environment and Development (1992) established the important precautionary principle and principles of vitality of sustainable development and healthy environment for human being.


Scholarship

Scholarship in the form of judicial opinions, scholarly works, and evidence of state practices and their obligations is often considered to be persuasive when interpreting international law. Though scholarship is used as generally non-binding source, or so called “soft law,” in some cases it can demonstrate that a particular state practice should be recognized as customary law or that a particular legal principal is widely accepted and should be applied to a question of international law.


Private International Law (ius gentium privatum)

Private international law regulates disputes between persons when the laws of multiple countries are implicated. In a narrow meaning, private international law, also referred to as “sensu stricto”, or “conflict of laws” rules, determines which country’s laws apply to specific relations. In a broader sense, “sensu lato” comprises conflict of laws rules, international civil procedure and international commercial arbitration (collisions of jurisdiction, conflict of jurisdictions), and material legal norms which have direct extraterritorial character and are imperatively applied (material legal norms concerning crossing State borders) – usually regulations regarding real property, consumer law, currency control, insurance and banking.

Conflict of laws analysis is not clearly defined and different methods for resolution based on many factors have been proposed by commentators and used by courts. Regardless of the factors used, the courts must resolve in which jurisdiction the case should be heard, which laws to apply to the case, and whether foreign judgments will be recognized by a nation.

The most common agricultural disputes occur between private parties. If these parties are of different nationalities, or at least act on the territories of different countries, the settlement of their dispute would involve international private law. Almost all spheres of private international law can relate to agriculture (e.g., property regulations, consumer protection, currency, agricultural insurance, agricultural contracting, banking regulations, and intellectual property issues).

Private international law is also generally derived from international treaties, internationals customs, general principles of international law and well-recognized scholarly works. The most commonly used and most internationally recognized sources of international private law are the Vienna Convention on the International Sale of Goods, the Rome Convention on the Law Applicable to Contractual Obligations and the UNIDROIT Principles of International Commercial Contracts. International private law is exemplified by the wide use of national laws or foreign laws and general dependency on the issues of choice of law and conflict of laws, as well as specific contract provisions.


National Law

National law is a facet of international law because a sovereign nation can regulate the activities of international parties within its own borders. These types of domestic laws can regulate foreign agriculture within a country’s borders. For example, domestic standards may regulate what types of agricultural products may be sold within a country. These laws affect international parties wishing to sell their goods inside the borders of that country. Other domestic laws such as tariffs or trade embargos also affect foreign agriculture interests by impacting trade.

Biotechnology legislation provides a further example of domestic laws that may impact international agriculture and food distribution. Intellectual property rights are important to companies that wish to protect their investment in agriculture goods that incorporate biotechnology. Although international agreements have been reached to address this issue, each country’s own system to protect intellectual property rights or the level of enforcement affects the ability to obtain access to certain technology. Some countries also restrict the use or importation of agricultural products containing biotechnology and thus impact international agriculture. For a complete discussion of issues surrounding biotechnology, please visit the Biotechnology Reading Room


International Organizations

World agriculture is substantially affected by international organizations, which are either created by international agreement or have a membership that consists mainly of nations. It is specifically important to note that the term “international organization” can refer to a wide variety of organizations, including international inter-governmental organizations (IGOs), as well as international non-governmental organizations (NGOs) and multilateral enterprises (transnational corporations (TNCs). Any of these types of international organizations may affect agriculture. IGOs are usually admitted as subject to public international law, while NGOs and TNCs still typically focus on the regulation of private international law and national laws. International law is developing very rapidly, and the status, jurisdictions and responsibilities of different kinds of organizations are becoming clearer over time. However, under current international law “international organizations” are still usually understood to mean inter-governmental organizations, which (a) are bodies based on a formal instrument of agreement between the governments of nation states; (b) include three or more nation states as parties to the agreement; and (c) possess a permanent secretariat, which performs ongoing tasks.

All international inter-governmental organizations can be subdivided into world organizations (e.g. United Nations, Food and Agriculture Organization of the United Nations, WTO, World Health Organization, International Fund for Agricultural Development, Organization for Economic Co-operation and Development, The World Bank, etc.) and supranational (and/or regional) organizations (e.g., European Union, the North American Commission for Environmental Cooperation, Organization of American States, African Union, the Southern African Development Community, Association of Southeast Asian Nations, the South Asian Association for Regional Cooperation, etc.).


Food and Agriculture Organization of the United Nations

The Food and Agriculture Organization of the United Nations (FAO) is the branch of the United Nations (UN) that promotes international efforts to fight hunger. An intergovernmental organization, the FAO has 191 Member Nations plus one Member Organization, the European Community and one Associate Member, the Faroe Islands. It is governed by the Conference of Member Nations, which is comprised of member countries and the European Community. The Conference of Member Nations meets every two years to set broad policy directives for the FAO. The interim administrative duties are handled by the FAO Council of 49 Member Nations and the FAO Director-General, both elected by the FAO Conference.

The FAO provides assistance to developing countries to modernize and improve agriculture, forestry, and fisheries. It works by disseminating information, providing countries with a negotiating forum, and implementing improvement projects in the field. As part of its mission to disseminate information, the FAO also helps countries develop national and foreign agriculture policy by assisting in the planning and drafting of legislation to meet its mandated goal of achieving food security for all.

The FAO, together with the World Health Organization, created the Codex Alimentarius Commission to develop food standards, guidelines, and related texts such as codes of practice under the Joint FAO/WHO Food Standards Programme. These Standards attempt to protect the health of consumers, ensure fair trade practices in the food trade, and promote coordination of all food standards work undertaken by international governmental and non-governmental organizations. Today, Codex Alimentarius, or the food code, has become the global reference point for consumers, food producers and processors, national food control agencies, and the international food trade. In fact, the WTO Agreement on Sanitary and Phytosanitary Measures (SPS) names Codex Alimentarius as the relevant standard-setting organization for food safety. The standards of Codex have also proved an important reference point for the dispute settlement mechanism of the WTO.

 

World Health Organization

The World Health Organization (WHO) is the directing and coordinating authority for health within the United Nations. The WHO Constitution came into force on April 7th 1948, a date now celebrated yearly as World Health Day. The supreme decision-making body for WHO is the World Health Assembly. It meets each year in May in Geneva, and is attended by delegations from all 193 Member States. The Executive Board of the WHO is composed of 34 members who are technically qualified in the field of health and elected for three-year terms. The Secretariat of WHO is staffed by over 8,000 experts and support staff on fixed-term appointments, working at headquarters, in the six regional offices, and in countries. The head of the Organization is the Director-General, who is appointed by the Health Assembly on the nomination of the Executive Board.

WHO, through the Department of Food Safety, Zoonoses and Foodborne Diseases (FOS), plays an important role in striving to reduce the serious negative impact of foodborne diseases worldwide. FOS works with other WHO departments, Regional Offices and WHO collaborating centers, as well as international and national agencies. In particular, WHO uses new methods of risk analysis to work closely with the Food and Agriculture Organization of the United Nations (FAO) to address food safety issues along the entire food production chain, from production to consumption.


International Fund for Agricultural Development

The International Fund for Agricultural Development (IFAD), a specialized agency of the United Nations, was established as an international financial institution in 1977 as one of the major outcomes of the 1974 World Food Conference. The Conference was organized in response to the food crises of the early 1970s that primarily affected the Sahelian countries of Africa. The conference resolved that “an International Fund for Agricultural Development should be established immediately to finance agricultural development projects primarily for food production in the developing countries.”

Membership in IFAD is open to any state that is a member of the United Nations, its specialized agencies, or the International Atomic Energy Agency. The Governing Council is IFAD’s highest decision-making authority, with 165 Member States* represented by a Governor and Alternate Governor and other “designated advisers”. The Executive Board, responsible for overseeing the general operations of IFAD and approving loans and grants, is composed of 18 members and 18 alternate members. The President, who serves for a four-year term (renewable once), is IFAD’s chief executive officer and chair of the Executive Board.


World Trade Organization

The World Trade Organization (WTO) is an international body comprised of the majority of the trading nations of the world. It administers a set of international agreements that have established the rules for a multilateral trading system. Although the agreements are negotiated and signed by governments, their purpose is to help exporters, importers and producers of goods and services by lowering trade barriers. The WTO also provides a place for member nations to negotiate trade policy. The underlying goal is to liberalize trade between all members, as well as to provide a forum for member countries to resolve trade disputes. Because international trade has become such an important part of agriculture, the WTO has a strong impact on agriculture world wide. For more information about the WTO, please visit the International Agricultural Trade Reading Room.


World Bank

 

The World Bank is the popular name of the United Nations’ specialized agency that consists of the International Bank for Reconstruction and Development (IBRD), the International Development Association (IDA), the International Finance Corporation (IFC), the Multilateral Investment Guarantee Agency (MIGA), and the International Centre for Settlement of Investment Disputes (ICSID). The World Bank provides low-interest loans, interest-free credit, and grants to developing countries. Many of these loan programs are used to develop infrastructure and export market capabilities for agriculture in developing countries.


Organization for Economic Co-operation and Development

The Organization for Economic Co-operation and Development (OECD) was established in 1961. Its mission is to help its member countries achieve sustainable economic growth and employment and to raise the standard of living in member countries while maintaining financial stability – all this in order to contribute to the development of the world economy.

Decision-making power of the OECD is vested in the Council. It is made up of one representative per member country, plus a representative of the European Commission. Representatives of the 30* OECD member countries meet in specialized committees (as well as sub-committees, working parties, groups of experts, ad hoc groups, etc.). For instance, among OECD committees and expert groups there are: Committee for Agriculture (COAG), Global Forum on Agriculture, Joint Working Party on Agriculture and Trade, Working Party on Agricultural Policies and Markets (APM), etc. The Secretariat of the OECD is made up of some 2,500 staff who support the activities of committees and the OECD Council.

The OECD is in the forefront of tracking the environmental performance of agriculture across OECD countries through its agri-environmental indicator database, policy inventory and modeling efforts, and analysis of policy measures and market approaches addressing environmental quality. OECD evaluates agricultural policy changes in its member countries, and in a broad range of non-member countries.


Conclusion

International agricultural law is a rapidly evolving body of law. It is significantly influenced by an evolution of general international law and its institutes, as well as by an increasing role of international organizations related to agriculture and food. Further, it is a complicated area of law because of the significant overlap between national versus world interests as well as international trade-related issues versus human rights and environmental issues in agriculture. However, the contemporary international legal system is developing a wide variety of both institutional and alternative dispute resolution and enforcement mechanisms to resolve disputes. With continued globalization and as the international system continues to evolve, it will become more important to every aspect of agriculture. As such, this knowledge is essential to everyone from producers to processors and from importers/exporters to governments.