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2. FOOD


I. INTRODUCTION

The 1992 Rio Declaration on Environment and Development proclaimed that human beings are entitled to a healthy and productive life in harmony with nature (principle 1), and Agenda 21 contains numerous references to food security, food safety and the rural poor. The right to food had been proclaimed, long before, in the 1948 Universal Declaration of Human Rights, and then reaffirmed in the 1996 International Covenant on Economic, Social and Cultural Rights.

Food security, however, remains a challenge in both developed and developing countries, although some progress has been made. In the period 1990-92, there were about 816 million undernourished people in the world - a figure that fell to 777 million by 1997-99. However, progress was unequal. The average rate of decline in the number of chronically undernourished has slowed in the last years, from 8 million a year in 1999 to 6 million a year in 2001. Consequently, the annual reduction required to reach the World Food Summit target of halving the number of under-nourished people by 2015 is now 22 million people per year. Continuing at the current rate, it will take more than 60 years to reach the target. (FAO, 2001a)

Since UNCED, problems of lack of economic and physical access to food have continued to be addressed at the international and national levels. Increasingly, attention has turned to the role of law in combating hunger and malnutrition. On the one hand, important developments have occurred in the application of the concept of the right to food as a human right. On the other hand, changes in the international trade regime have accompanied developments regarding food safety and related regulatory measures. The World Trade Organization Agreement on Sanitary and Phytosanitary Measures, which adopts the Codex Alimentarius as the source of all international standards on food, underlines the importance of food safety and food trade in today's world.

In many countries, recent food contamination problems have contributed to increasing lack of confidence in food safety among consumers. While some of these food contamination cases were accidental and unforeseen, others could have been predicted and avoided if proper monitoring and early warning mechanisms and controls had been in place. Hence the need for surveillance programmes which provide early warning about emerging food quality and safety problems and enable effective controls at both national and international levels (FAO, 2001a).

The chapter will explore these two dimensions: first, developments regarding the clarification and implementation of the right to food as a human right; and, second, developments concerning food law, in particular in food safety and quality.

II. RIGHT TO ADEQUATE FOOD

The right to food was first recognized in the Universal Declaration of Human Rights in 1948, and further codified by the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR), which entered into force in 1976. In the ICESCR the right is recognized as part of an adequate standard of living, which also includes housing and clothing (art. 11-1), and it enjoys separate recognition (art. 11-2). The right to food is also closely related to the right to life, which is protected under article 6 of the International Covenant on Civil and Political Rights (ICCPR).

As will be discussed below, the right to food has acquired a more refined definition with the adoption of General Comment 12 to article 11 of the ICESCR. In that Comment, the right to adequate food is defined as being realized “when every man, woman and child, alone or in community with others, have physical and economic access at all times to adequate food or means for its procurement”. This implies the “availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture”, and the “accessibility of such food in ways that are sustainable and that do not interfere with the enjoyment of other human rights”. (CESCR, GC 12) The right to adequate food also encompasses food security, which is defined by FAO to exist “when all people, at all times, have physical and economic access to sufficient, safe and nutritious food to meet their dietary needs and food preferences for an active and healthy life”. (World Food Summit Plan of Action, para. 1)

According to the Committee on Economic, Social and Cultural Rights (CESCR), which is the treaty body of independent experts that monitors state reports on compliance with the ICESCR, the right to food implies the right to means of production or procurement of food of sufficient quantity and quality, free from adverse substances and culturally acceptable. This right can be fulfilled by individuals' own efforts or in community with others, and must be enjoyed by all without any adverse distinction based on race, religion, sex, language, political opinion or other status.

2.1. International Framework: Key Developments

2.1.1. International Activities

(a) International Conference on Nutrition

The International Conference on Nutrition (ICN), held in Rome from 5 to 11 December 1992, was a major world event where food and environmental problems were addressed at the global level for the first time by the international community. Organized by FAO and the World Health Organization (WHO), the ICN was attended by delegates from 159 countries and the European Union (EU), and representatives from 144 non-governmental organizations (NGOs) and 27 intergovernmental organizations. The ICN adopted the World Declaration on Nutrition and the Plan of Action for Nutrition. The Declaration reflects a worldwide consensus that, globally, there is enough food for everyone, that inequitable access to food is the main problem and that each individual has a fundamental right to nutritionally adequate and safe food. In the Declaration, states commit themselves to act in solidarity to assure sustained nutritional well-being for all people in a peaceful, just and environmentally safe world.

The Plan of Action, which is linked to the Declaration, sets out four overall objectives: ensuring continued access by all people to sufficient supplies of safe food for a nutritionally adequate diet; achieving and maintaining the health and nutritional well-being of all people; achieving environmentally sound and socially sustainable development to contribute to improved nutrition and health; and eliminating famines and famine deaths. The Plan contains policy guidelines to help states attain these basic objectives, and outlines nine action-oriented themes that governments should consider in their efforts to improve nutrition (FAO, 1992).

(b)World Food Summit

Between 13 and 17 November 1996, nearly 10 000 delegates and journalists converged on FAO headquarters in Rome for the World Food Summit (WFS). Heads of State and Government, Ministers of Agriculture and other delegates from 185 countries and the EU joined representatives of NGOs, United Nations agencies and other international bodies for the Summit proceedings. NGOs, parliamentarians, farmers' associations and the private sector held parallel meetings in Rome, as did some 500 young people gathered for a four-day International Youth Forum on food security.

The aim of the WFS was to raise awareness about issues surrounding world hunger, namely the fact that in 1996 more than 800 million human beings were not able to meet their most basic nutritional needs. The overriding goal of the WFS was to garner high-level political support for making concrete progress in achieving global food security, and two documents were adopted at the opening session: the Rome Declaration on World Food Security, and the World Food Summit Plan of Action (PoA), which details the Declaration's policy statements. Reaffirming the right of every person to be free from hunger, the Heads of State and Government pledged their political will and shared commitment to ensuring that “all people, at all times, have physical and economic access to sufficient, safe and nutritious food to meet their dietary needs and food preferences for an active and healthy life”, with an “immediate view to reducing the number of undernourished people to half their present level no later than 2015”. (FAO, 1997)

The commitments contained in the PoA are intended to underpin diverse paths to a common objective - food security and a significant decrease in chronic hunger - at the individual, household, national, regional and global levels. These commitments cover seven interrelated areas for governments to address: (i) general conditions for economic and social progress conducive to food security; (ii) policies aimed at poverty eradication and access to adequate food; (iii) sustainable increases in food production; (iv) consideration of the contribution of trade to food security; (v) prevention of, preparedness for and response to food emergencies; (vi) optimal investment in human resources, sustainable production capacity and rural development; and (vii) cooperation in implementing and monitoring the PoA. (FAO, 1997)

(c) Steps Since the World Food Summit

The WFS gave a much-needed boost to a right that many have considered to be only aspirational, unrealistic or at the very least too vague to implement in a meaningful way. The WFS reaffirmed the right to adequate food and the fundamental right to be free from hunger. It set as Objective 7.4 of the PoA the clarification of the content of this right and the search for better ways of implementing it, calling upon the UN High Commissioner for Human Rights (UNHCHR) to take the lead in that work, in cooperation with other agencies, human rights bodies and civil society. (FAO, 1997) Much work has been done by the UN human rights bodies, along with FAO and NGOs as active partners, since the WFS.

Action by NGOs: In recent years, NGOs have played an essential role in clarifying the content and ways of implementation of the right to adequate food. They have participated in consultations of the UNHCHR and the CESCR and lobbied actively for more progress in the field. They have consistently raised the question of the right to food in FAO fora, including the preparations and follow-up to the WFS.

NGOs produced a draft Code of Conduct on the Right to Adequate Food in 1997, as called for by the NGO Forum of the WFS. (FIAN, et al., 1997) More than 800 NGOs have declared their support for the Code and its implementation at the national level. In autumn 2001, NGOs called on FAO, in cooperation with the UNHCHR, to start intergovernmental negotiations on such a code, or “voluntary guidelines for food security”, which were explicitly mentioned in Objective 7.4. NGOs have also identified the right to food and other related rights, in particular access to resources such as land, water and genetic resources, as one of the key strategic elements for their advocacy in the context of the World Food Summit: five years later.

Action by UN Bodies: The Commission on Human Rights has annually since 1997 reaffirmed that hunger constitutes an outrage and a violation of human dignity, and mandated the UNHCHR to work on Objective 7.4. The UNHCHR has convened three expert consultations to date, the first on the content of the right to food, the second on the role of international organizations and the third on implementation at the national level. The Commission has called for a fourth expert consultation, which should focus on the realization of the right to food as part of strategies and policies for the eradication of poverty. Finally, in 2000, the Commission established the mandate of a Special Rapporteur on the Right to Food, who reports to the Commission and to the General Assembly on ways to implement the right to food and on violations of that right. (Robinson, 2002)

Steps taken by FAO to implement the PoA after the World Food Summit include the adoption, in 1999, of a Strategic Framework for the years 2000-2015 to focus work on WFS goals and PoA priorities; a new annual publication series on the State of World Food Insecurity, also launched in 1999; and further development of indicators on food insecurity. In 1998 FAO published a book called “The Right to Food in Theory and Practice” (FAO, 1998), and in 1999 it issued “Extracts from International and Regional Instruments and other Authoritative Texts Relating to the Right to Food” (FAO, 1999).

The governing body of FAO, the FAO Conference, adopted a resolution on the right to food in 1997 (FAO, 1997), building on the explicit statement in the FAO Constitution of the Organization's goal of “ensuring humanity's freedom from hunger”. As lead agency of the UN Task Force on long-term food security in the Horn of Africa, established by the Advisory Committee on Coordination in 2000, FAO has stressed the right to food of everyone, and the importance of peace, democracy and other human rights in attaining that goal. (FAO, 2000) Nevertheless, progress in achieving the main goal of the WFS, reducing the number of hungry people, has been too slow. Therefore FAO convened a new meeting, the World Food Summit: five years later (WFS:fyl), to foster the political will and mobilize resources for a renewed commitment to the WFS goals.

(d) World Food Summit: five years later

The WFS:fyl took place in Rome, from 10 to 13 June 2002. Like the initial WFS in 1996, this summit was attended by Heads of State and Government, Ministers and other delegates from 182 countries and the EU as well as representatives of NGOs, UN agencies and other international bodies. NGOs, farmers' associations, the private sector and other civil society organizations held parallel meetings and events in Rome.

The WFS:fyl's main outcome was the Declaration unanimously approved on the opening day entitled “International Alliance Against Hunger”. Reaffirming “the right of everyone to have access to safe and nutritious food”, the Declaration renewed the commitment made in 1996 to “halve the number of hungry in the world no later than 2025”. It stressed the importance of strengthening the respect of all human rights, the rule of law and good governance to solve socio-economic problems and to achieve food security. It also called for the adoption of poverty reduction and food security strategies that increase agricultural productivity and food production and distribution, particularly through the promotion of equal access by men and women to land, water and food.

2.1.2. Legal Developments

(a) General Comment 12 on the Right to Adequate Food

Benefiting from the work of earlier expert consultations, the CESCR adopted in 1999 a General Comment 12 on the Right to Adequate Food, which constitutes an authoritative statement on the content of the right in article 11 of the ICESCR (see Box 1), as well as on violations of the right and on the national and international obligations of states. The General Comment states that “The right to adequate food is realized when every man, woman and child, alone or in community with others, have physical and economic access at all times to adequate food or means for its procurement”. The core content of this definition is the availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances and acceptable within a given culture; and the accessibility of such food in ways that are sustainable and that do not interfere with the enjoyment of other human rights.

Box 1 - International Covenant on Economic, Social and Cultural Rights, Article 11

1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.

2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed:

(a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources;

(b) Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.

International law prescribes that the state is responsible for the enjoyment of human rights within its territory. However, the state may assign responsibilities to different levels of government, and should, through its national strategy or legislation, assign as precise a responsibility for action as possible, especially in addressing multidimensional and multisectoral problems such as food insecurity. Under the ICESCR, state parties are obliged to take all appropriate steps, to the maximum of available resources, to progressively achieve the right to food for all.

While it is important to create an enabling environment where each person can enjoy the right to food acquired through his or her own efforts, under the ICESCR it remains incumbent on the state to ensure that those who are unable to provide for themselves are adequately provided for, so that, as a minimum, no one suffers from hunger. The General Comment provides that the principal obligation of states is to take steps to progressively achieve the full realization of the right to adequate food. This obligation consists of the duty to respect, protect and fulfil the right.

The obligation to respect existing access to adequate food requires states not to take any measures preventing such access. The obligation to protect requires that states take steps to ensure that others do not deprive individuals of their access to adequate food. According to the General Comment, the obligation to fulfil incorporates the obligation to facilitate as well as to provide. To facilitate means that states must pro-actively engage in activities intended to strengthen people's access to resources and improve their livelihoods and food security; to provide means that whenever an individual or group is unable, for reasons beyond its control, to enjoy the right to adequate food, states must fulfil the right directly by providing adequate food. (CESCR, 1999)

(b) Towards Voluntary Guidelines on the Right to Adequate Food

As mentioned above, the development of a draft Code of Conduct on the Right to Adequate Food in the 1990s was led by NGOs. Three of them took the lead in the drafting: the International Jacques Maritain Institute, FoodFirst Information and Action Network and the World Alliance for Nutrition and Human Rights. The work was undertaken on the basis of the final words of Objective 7.4, which requested the UNHCHR to bear in mind “the possibility of adopting voluntary guidelines for food security”, as well as on the basis of an explicit mandate by the NGO Forum of the WFS. The draft Code has the support of hundreds of NGOs as well as some governments.

The draft Code provides a definition of the right to food, lists obligations of states at the national and international level and addresses the roles of intergovernmental, non-governmental and corporate actors. (FIAN et al., 1997) It has proven to be a useful tool for the clarification of the obligations contained in article 11 of the ICESCR, and it had an influence on the drafting of General Comment 12. (Borghi and Postiglione Blommestein, 2002)

Beyond the Code of Conduct's already proven influence and utility, NGOs wish to take the Code further, into the intergovernmental arena. It was one of the items on the NGO agenda for the WFS:fyl, and a number of NGOs have called upon FAO to initiate formal negotiations at the intergovernmental level for such a Code, in cooperation with the UNHCHR. The Declaration adopted at the WFS:fyl eventually invited the FAO Council (FAO's intersessional governing body) to establish at its forthcoming session (November 2002) an Intergovernmental Working Group, with the participation of stakeholders, “to elaborate, in a period of two years, a set of voluntary guidelines to support Member States' efforts to achieve the progressive realisation of the right to adequate food in the context of national food security”. Once created, the Working Group will have to produce such guidelines within two years. FAO was asked, in close collaboration with relevant treaty bodies, agencies and programmes of the UN system, to assist the Working Group, which shall report on its task to the Committee on World Food Security.

2.2. Recognition and Application of the Right to Food at the National Level

Human rights are mainly codified internationally, although effective enjoyment of them depends largely on their application at the national level. Many countries have incorporated human rights into their constitutions and taken other legislative measures for their implementation. Rights can also be enforced through jurisprudence created by courts, and through national human rights institutions, such as Ombudsmen and Human Rights Commissions.

2.2.1. Constitutional Provisions

Over twenty countries recognize the right to food explicitly in their Constitutions. A few examples of these are given in Box 2. Many more countries have constitutional provisions that guarantee individual entitlements to food and other basic requirements for an adequate standard of living, notably in social security legislation and in land and labour law. Other provisions govern process rights, for example by combating de facto discrimination on the basis of race, sex, language, religion or other social status or by protecting freedom of association and assembly. All of these may be implicated in the protection of the right to adequate food (FAO, 1998).

In industrialized countries that have a well-developed social security system, a specific constitutional provision or legislation on the right to food may not be necessary for the actual enjoyment of the right. On the other hand, in less developed countries which have weak or less comprehensive social security systems, and weak protection of other rights, such provisions can prove crucial as a first step to implement the right to food at the national level.

Box 2 - Some Constitutional Provisions on the Right to Food

BANGLADESH - Article 15

“It shall be a fundamental responsibility of the state to attain ... a steady improvement of the material and cultural standard of living of the people, with a view to securing to its citizens ... the provision of the basic necessities of life, including food”.

NICARAGUA - Article 63

“It is the right of Nicaraguans to be protected against hunger. The state shall promote programmes which assure adequate availability and equitable distribution of food”.

SOUTH AFRICA - Section 27

“Everyone has the right to have access to ... sufficient food and water.... The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of each of these rights”.

UKRAINE - Article 48

“Everyone has the right to a standard of living sufficient for himself or herself ... that includes adequate nutrition”.

2.2.2. Framework Legislation

In countries where food insecurity prevalence is high, a framework law can be a useful tool for the progressive implementation of the right to food, ensuring that the maximum of available resources is allocated to food security and rural development, while at the same time holding appropriate government organs accountable for the process and for the results. The General Comment to article 11 of the ICESCR, discussed above, specifically requests states to consider the adoption of a framework law in the implementation of the national strategy concerning the right to food. The Comment explains that the law should include provisions on its purpose; the goals to be achieved and the relevant time-frame for their achievement; the means by which the objectives can be reached, in particular the intended collaboration with civil society, the private sector and international organizations; the institutional responsibilities for the process; and the national mechanisms for monitoring of the process, as well as possible recourse procedures. The law should assign responsibilities, set benchmarks and guide further legislative action. In developing the legislation, state parties are called upon to actively involve civil society organizations (CESCR, 1999).

Most state parties to ICESCR are also parties to the International Covenant on Civil and Political Rights and other human rights instruments. Moreover, they participated in the 1993 World Conference on Human Rights, which declared that all human rights are universal, indivisible, interdependent and interrelated. This means that in implementing specific rights, such as the right to adequate food, other rights - civil, cultural, economic, social and political - must also be respected. The obligations of conduct are thereby reinforced along with the obligations of results. Legislation reflecting a rights-based approach to food security, therefore, should be concerned not only with the achievement of an adequate nutritional status of the population, but with achieving the result through the best possible process.

Because food security and the right to food are multidimensional and cross-sectoral, they may require legislative measures in many different areas. Therefore the lack of specific implementing legislation does not necessarily suggest a regulatory vacuum or non-compliance with article 2 of the ICESCR, which commits state parties to take legislative measures for the implementation of the rights recognized in the treaty.

While a number of countries have constitutional provisions on food and nutrition, none has yet adopted specific implementing legislation, although a few countries are now considering such legal action. The Third Expert Consultation of the UNHCHR, held in March 2001, considered legislative measures to implement the right to food and recommended, as a first step, the careful auditing of existing national legislation, policy and administrative measures and available recourse procedures, followed by the adoption of an administrative agenda for change and amendment. A legislative agenda should then be set which may include the adoption of framework legislation. (UNHCHR, 2001) It is believed that the adoption of such legislation would be conducive to food security, as it would clarify the content of the right in a particular country and ensure that the rule of law is brought to bear on food security issues. (FAO, 2001d) Some guidelines for the development of such legislation are set out below.

The process of establishing legislation should itself be participatory and tailored to the particular circumstances of specific countries as well as their legislative environment and traditions. Framework legislation should take into account the fact that different government agencies are responsible for different aspects and therefore overall responsibility may be diffused. Appropriate legislation could assign responsibility for action more clearly to the different actors in a transparent way, thus facilitating accountability and public participation.

Framework legislation could not dictate food security policy in much detail, but it could establish the principles to which such policy should conform, and could define acts that are forbidden, so as to ensure, at the very least, respect for the right to food. It would also set in motion the review of other sectoral legislation for the protection of the right to food, establishing targets and benchmarks for the progressive realization of the right to food, and allowing for its monitoring by the general population, NGOs and communities (CESCR, 1999).

While human rights law makes it clear that every human being has the right to access to adequate food, it does not, as such, define exact entitlements, especially transfer entitlements. Such entitlements depend on national legislation and custom, including the question of who is responsible for providing the transfer. In countries with weak social security systems, and with little or no entitlements outside the family in case of illness, unemployment or other events outside a person's control, the lack of food entitlements is particularly serious. Framework legislation could define entitlements and duty holders, as well as establish appropriate measures to enable the duty bearers to fulfil their responsibilities (FAO, 1998).

Because human rights should always be ensured through effective recourse in case of violations, framework legislation should define the modalities of oversight by appropriate bodies (ombudsmen, human rights commissions and the courts), and identify which aspects are actionable. Without specific legislation, that is, with reliance only on constitutional or international legal provisions, recourse is ill-defined and may not be effective. Framework legislation should make clear who can claim recourse for which action or omission by which government organ (FAO, 2001d).

2.2.3. Case Law

Case law on the right to adequate food remains scarce. However, in recent years some cases have addressed questions of justiciability and enforcement. For example, Switzerland's Federal Court, in V. v. Eninwohner-gemeinde X. und Regierungsrat des Kantons Bern (BGE/ATF 121 I 367, 27 October 1995), recognized that it lacked the legal competence to set priorities for the allocation of necessary resources to realize the right to a minimum state of existence, which includes food. However, the court determined that it could set aside legislation if it failed to meet the minimum standards required by the constitutional right. Thus the exclusion of three persons from social welfare legislation was found to be a violation of the right to food, despite their being illegal immigrants (Ziegler, 2002).

The Constitutional Court of South Africa, in the Grootboom case (CCT 11/00, 4 October 2000), which concerned housing rights, made determinations that are of general relevance for the judicial enforcement of socio-economic rights and have received much attention worldwide. The case is particularly relevant since the Constitution of South Africa proclaims that everyone has the right to access to adequate housing (sec. 26) and provides that the state must fulfil that right to the maximum of available resources, a wording that closely correlates with the content of food and housing rights in the ICESCR.

The case concerned hundreds of persons who had been evicted from privately owned land, where they had been squatting without permission. The judgement examined the measures taken by public authorities in light of the constitutional obligation to (1) take reasonable legislative and other measures to (2) progressively achieve the right (3) with available resources. The judgement reviewed the state's housing programmes and concluded that they fell short of the required obligations, in that no provision was made for relief for people in desperate need. In addition, the manner in which the evictions were carried out was found to be in breach of the state's obligations in regard to housing. The court issued a declaratory order that the state has an obligation to devise, fund, implement and supervise measures to provide relief to those in desperate need of access to housing.

The Indian Supreme Court has also intervened in cases concerning the right to food. A recent petition claimed that starvation deaths were occurring in certain regions, while amounts of grain in silos reserved for famine situations were in excess of legislative requirements. The petitioners requested that people at risk of starvation be provided food on the basis of their right to food, derived from their constitutional right to life. The court issued an interlocutory order requiring that food-for-work schemes be implemented in areas where starvation deaths had recently occurred (Langford, 2001).

2.2.4. Non-judicial Implementation

Important as judicial enforcement may be, it is not the only way of implementing socio-economic rights or other human rights at the national level. In Colombia, the ombudsman (Defensor del Pueblo) serves a number of important functions, including awareness-raising, initiation of legislative and other state action, investigation of alleged violations and invalidation of acts which contradict recognized rights. As the right to food is one of the constitutionally recognized rights, the ombudsman could take various steps, including demanding the adoption of a policy to ensure access to food for all, initiating court action and establishing protective programmes for the enjoyment of the right to food.

In Mozambique, the government has made considerable progress in facilitating access to productive resources for those who lack them as well as providing direct aid for groups that are unable to provide for themselves. More important than financial resources have proven to be political will and organizational capacity. These, coupled with limited but well-utilized financial resources, have enabled the government to make considerable progress in reducing poverty and food insecurity.

In Norway, a parliamentarily endorsed policy established the goal of ensuring food security as defined by the WFS, and created a normative framework linked to the three kinds of state obligations laid out in General Comment 12, i.e., the duty to respect, protect and fulfil. This led to the development of a guiding matrix facilitating the identification of ongoing activities, strategies and programmes toward these ends.

The South African Human Rights Commission (SAHRC) is constitutionally mandated to promote, protect and monitor constitutionally protected human rights, which include the right to food and other socio-economic human rights. The SAHRC has the power to request information from any relevant government organ on its activities directed toward the realization of the rights in question, and to issue recommendations to Parliament. For the purpose of monitoring socio-economic rights, the SAHRC has developed questionnaires or “protocols” to obtain information. It also has the power to subpoena government officials in case the information is not forthcoming. (UNHCHR, 2001)

III. LAW ON FOOD CONTROL, FOOD SAFETY AND STANDARDS

In parallel to recent developments regarding the right to adequate food, the last decade has witnessed significant change in the regulatory frameworks governing food control, food safety and food standards. Some of the observed empirical and legislative trends at the international and national levels are set out below.

3.1. International Framework: Key Developments

3.1.1. World Trade Organization Agreements

The Uruguay Round of Multilateral Trade Negotiations in 1994 led to the establishment of the World Trade Organization (WTO) in January 1995. Agriculture was included in the trade talks in a significant way for the first time and it was agreed to reduce tariff barriers for many agricultural products in order to encourage free trade. Two agreements relevant to food were concluded within the framework of the WTO: the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) and the Agreement on Technical Barriers to Trade (TBT Agreement). These set important parameters governing the adoption and implementation of food quality and safety measures.

The SPS Agreement was drawn up to ensure that countries apply measures to protect human and animal health (sanitary measures) and plant health (phytosanitary measures) based on the assessment of risk, or in other words, based on science. The aim is the establishment of a multilateral framework of rules and disciplines that will guide the development, adoption and enforcement of harmonized sanitary and phyto-sanitary measures and minimize their negative effects on trade. The use of international standards is intended to allow countries to prioritize the use of their often limited resources and to concentrate on risk analysis and scientific investigations.

Under the SPS Agreement, Codex Alimentarius standards, guidelines and recommendations have been granted the status of a reference point for international harmonization. With regard to food safety measures, WTO members should base their national standards on international standards, guidelines and other recommendations adopted by Codex where they exist. As long as a country employs these standards, its measures are presumed to be consistent with the provisions of the SPS Agreement. They also serve as the basic texts to guide the resolution of trade disputes.

The TBT Agreement, which had been in existence as a multilateral agreement since the Tokyo Round (1973-1979), was revised and converted into a multilateral agreement through the Uruguay Round. It covers all technical requirements and standards (applied to all commodities), such as labelling, that are not covered under the SPS Agreement.

3.1.2. Codex Alimentarius

As noted, the Codex Alimentarius (Codex) is the main instrument for the harmonization of food standards. It constitutes a collection of internationally adopted food standards, maximum residue limits for pesticides and veterinary drugs and codes of practice. The objectives of Codex are to protect the health of consumers, to ensure fair practices in food trade and to promote the coordination of all food standards work undertaken by national governments. Each government must ensure that the legislation underlying its country's food control system is scientifically based and must work to establish equivalency and transparency among national food control systems.

The Codex Alimentarius Commission has prepared six important instruments in the years since Rio. Of these, so far only the Codex Guidelines for the Production, Processing, Labelling and Marketing of Organically Produced Foods (1999), which refer to genetically modified foods, have been adopted. These Guidelines were developed in light of the growing production of and international trade in organically produced foods, with a view to facilitating trade and preventing misleading claims. The Codex Alimentarius Commission is the primary forum in which the food safety aspects of genetically modified organisms are presently being addressed.

Instruments still being developed include the proposed draft Guidelines for the Labelling of Foods Obtained Through Certain Techniques of Genetic Modification/Genetic Engineering, proposed draft Principles for the Risk Analysis of Foods Derived from Modern Biotechnology, the proposed Revised Code of Ethics for International Trade in Food and proposed draft Guidelines for the Conduct of Food Safety Assessment of Foods Derived from Recombinant DNA Plants.

In the food labelling area, the Codex Committee on Food Labelling has been working to amend the Codex General Standard for Labelling Pre-packaged Foods: Labelling of Foods Obtained Through Certain Techniques of Genetic Modification/Genetic Engineering. As part of the amendment process of the General Standard, the Committee is also working on proposed draft Guidelines for the Labelling of Foods Obtained through Certain Techniques of Genetic Modification/Genetic Engineering.

3.2. National Framework: Main Trends

3.2.1.Empirical Trends

In 2020, the world's population is expected to reach 7.6 billion, with most of the growth taking place in developing countries. Expanding populations pose great challenges to world food systems: agricultural yields and animal husbandry practices must improve; pre- and post-harvest losses must decrease; food processing and distribution systems must become more efficient; and new technologies and strategies must be adopted to meet the needs of growing populations. Some of these may compromise food safety and the nutritional value of food. Developing countries in particular must cope with poor post-harvest infrastructure, including the lack of safe water, electricity, storage facilities, roads and means of transport.

Between the years 1995 and 2020 the developing world's urban population is expected to double, to 3.4 billion. Urbanization creates great demand for food, and the increasing population density, expansion of slums, proliferation of street sellers and general degradation of civic amenities create health hazards. These developments, along with associated changes in the way food is produced and marketed, have increased the potential for new risks. Existing risks are rising because of a reduction in the supply of fresh potable water, climate change, migration, escalating poverty and increasing tourism and trade. The growing volume of international trade in agricultural products, in particular, makes the rapid transmission of food hazards more likely and reaction more problematic.

In both urban and rural areas, much has changed in the way food is produced, prepared and sold. New technologies allow food products to travel farther and stay fresh longer, while scientific advances have improved the identification of food hazards and the management of risk. At the same time, advanced technologies have created new food dangers. Food-borne disease outbreaks in recent years have provoked a serious loss of confidence in the food supply both in the developed and the developing world. Particularly in the last decade, public concern over the safety of food has increased dramatically. Some well-known diseases have persisted while new ones have appeared, such as variant Creutzfeldt-Jakob disease. Even as some diseases come under control, others, such as antibiotic-resistant salmonella, emerge. For example, E. coli O157:H7 is an important new food-borne pathogen which has caused several major outbreaks.

In addition to microbes, food has been affected by chemicals and environmental contaminants. Misuse of pesticides during manufacture and storage can lead to high levels of residues, and heavy metals and other contaminants enter food through soil or water. Most recently, there has been contamination from dioxins entering the animal feed supply and from food additives. Antibiotic drug residues arising from improper animal feed or treatment is alleged to contribute to the growing antibiotic resistance of microorganisms, and animal feed affected with mycotoxins can result in the contamination of milk and meat.

Increasing numbers of consumers are concerned about how their food is produced, processed, handled and marketed. Thus a new market for agricultural products has arisen to meet rising consumer demand for organically produced agricultural products and foodstuffs. Organic agriculture involves very tight restrictions on the use of fertilizers and pesticides, and the prohibition of the use of genetically modified organisms (GMOs) at all stages of food production, processing and handling. It also aims to produce food while respecting ecosystems, preserving soil fertility and preventing pest problems.

The increasing use of GMOs in food production has been another important trend in the years since Rio. Modern biotechnology permits the artificial transfer of genetic material from one organism to another, including across species boundaries, which can broaden the range of alterations that can be made to food and can expand the spectrum of possible food sources. Several genetically modified foods, such as tomatoes, potatoes, raspberries, banana, soybean and melon, have become available, mainly in developed countries. A large proportion of the food consumed in some industrialized countries is derived from genetic modification.

Advances through genetic modification of food have the potential to improve the world's food supply and reduce the potential for losses due to pests, diseases, transport and storage. However, experts disagree on the safety, nutritional value and environmental effects of GMOs. On the one hand, advocates argue that the methods for transferring genes are more precise and predictable than in traditional plant breeding, and that the risks of harmful effects are very small. They also argue that any potential danger is mitigated because adverse changes in food due to gene transfer can be detected before the foods are marketed. In contrast, critics argue that the consequences of genetic modification of food are unpredictable, and that considerable scientific evidence will be needed to prove that such foods are safe. They also argue that it may be difficult or impossible to reverse course once genetic modifications have become widespread. The lack of adequate data causes many to argue that governments should apply the precautionary principle before clearing the use of genetic engineering in human food.

Media interest in genetically modified foods and in food-borne disease outbreaks has raised public awareness, and in many countries consumers are becoming more organized and more active. Citizens are demanding protection in the whole food supply chain, from primary producer to end consumer, i.e., from farm to fork. Improved access to scientific knowledge, including through the internet, has helped consumers to gain a better understanding of food safety issues. Consumers have become more discriminating and insist on better protection. They expect that both domestic and imported foods will meet basic quality and safety standards, and will conform to requirements relating to food hygiene, labelling, additives and residues. Concepts such as the Hazard Analysis Critical Control Point system have gained greater currency, and have raised awareness of food safety issues around the world. Countries are making choices about how to address food safety issues without unlimited resources.

Nonetheless, the economic effects of food-borne disease remain ill understood. Developing countries in particular have limited capacities to collect and analyse data on potential food-borne risks. In recent years more research has been carried out to capture the economic implications of food safety decisions, and reforms of national food control systems, including through legislation, may follow.

3.2.2. Legislative Trends

Some trends can be observed in recent years in changes made to national legal frameworks governing food.

(a) Reviewing and Consolidating Food Legislation

National legal frameworks governing food control and food safety vary widely in their complexity and their coverage. Some countries have no food legislation whatsoever, relying solely on, for example, standards of the Codex Alimentarius Commission. Other countries have had the same food legislation in place for decades. Laws and regulations may not have been updated or have constantly been amended, creating a maze of rules which are difficult to understand for regulators, industry and consumers.

Typically the legal framework governing food in a particular country has evolved over many years and is a blend of political, societal, economic and scientific forces. It is often influenced by the need to develop a regulatory framework for the domestic market or to promote exports. The whole system can therefore lack coherence and become quite complex. Although some sectoral regulation is inevitably necessary in any food control system, the general trend is to address food issues comprehensively in a basic food law, accompanied by implementing regulations and standards.

The most recent example of modernizing legislation into a coherent and transparent set of rules is provided by the recent EU Regulation (EC) No. 178/2002, adopted on 28 January 2002. EU food legislation had been developed with a focus on economic and trade needs, and an overall structure was lacking. The purpose of the Regulation is to provide a basis for a high level of protection of human health and to restore consumer confidence in food. The Regulation sets out the basic framework of guiding principles and definitions for future European food law, establishing the European Food Safety Authority and laying down procedures on matters of food and feed safety. An important element of the Regulation is the responsibility of food and feed businesses to ensure that only safe food and feed is placed on the market. Food is considered to be unsafe if it is potentially injurious to health, unfit for human consumption or contaminated in such a manner that it would not be reasonable to expect it to be used for human consumption.

Another jurisdiction that has adopted new basic food legislation is Indonesia: Act No. 7 on Food of 1996. Besides protecting consumer health, one of the purposes of the law is to provide the country with a modern law to promote the international competitiveness of the nation's products. More recently, the Russian Federation adopted a Federal Law FZ29 of 2000 containing general requirements for safeguarding food quality and food safety. Both New Zealand and Australia have made numerous amendments to their state and territorial legislation, based on a treaty signed between them in 1995, which established a system for the development of joint food standards. In Australia, the State of Tasmania adopted a new Food Act in 1998 and the State of New South Wales enacted a new Food Regulation and the Food Production (Safety) Act of 1998.

Developments are not limited to the larger countries. In Mauritius, the Food Act (and Regulations) of 1998 provides for a modernization and consolidation of food safety law, while other countries such as Belize, Cambodia, Cape Verde and Chile have made efforts to update their food legislation. At the time of writing, Haiti was in the process of adopting a basic food law, and Bhutan, Ghana and Swaziland had begun consideration of legislative changes to their food control and food safety systems.

In many of the former socialist states, such as Albania, Estonia, Hungary, Latvia and Lithuania, new basic food laws have been created where they previously did not exist. Nearly all these countries have aspirations to join the EU, so harmonization of laws and regulations is important. In Lithuania, for example, the Law on Food, adopted in 2000, specifically states that the administrative institutions shall implement the food safety requirements of the EU, FAO, WTO and the Codex Alimentarius Commission.

However, as noted above, national food legislation is not limited to basic food laws. The legal framework governing food control may consist of a variety of legal texts, often arising from governments responding to precise situations and needs. In such cases the legislation may be restricted to specific products or food-related issues. For example, after the Bovine Spongiform Encephalopathy (BSE) crisis, numerous countries adopted specific regulations in order to limit the import of meat products. Illustrative is the Order (No. 10/2001) adopted by Cape Verde in order to prohibit bovine importation from areas infected by BSE, or, similarly, the Meat Control (Importation of Meat and Meat Products) Regulations adopted by Kenya in 2001. More comprehensive legislation on beef products, including safety and quality control systems, was adopted by countries such as Norway (Act of 1997 Relative to Meat Production) and South Africa (Meat Safety Act of 2000).

(b) Incorporating Prevention: The HACCP Approach

Food law has traditionally consisted of legal definitions of unsafe food, along with the prescription of enforcement tools for removing unsafe food from trade and punishing responsible parties after the fact. It has generally not provided food control agencies with the clear mandate and authority to prevent food safety problems. The result has been food safety programmes that are reactive and enforcement-oriented rather than preventive. To the extent possible, modern food laws should not only contain the necessary legal powers and prescriptions to ensure food safety, but also charge the competent food authority or authorities with building prevention into the system.

To adopt a preventive approach, countries might incorporate a quality assurance system in their basic food legislation. For example, the 1996 Indonesian Food Act states that any person who produces food to be traded must implement a quality assurance system. The Hazard Analysis Critical Control Point system (HACCP) is the most important quality assurance system that is applied at all stages in the production, processing and handling of food products. It monitors all the critical steps in the food chain and identifies where the problems might occur, although it is up to the food operator in question to take the appropriate precautions in order to prevent contamination.

The HACCP system is firmly established and required by the food legislation of many developed countries, in particular the United States and EU members. In New Zealand, as well, the Food Amendment Act of 1996 defines food safety programmes as ones that are based on HACCP, and in Hungary a 1999 decree adopted under the Food Act of 1995 determines the criteria of HACCP to be applied by the food producer. Similarly, in Lithuania the 2000 Law on Food states that HACCP must be applied at food handling establishments.

In some of the food sectors, such as milk, meat and fish processing, the implementation of HACCP may sometimes be well advanced. In other sectors, such as aquaculture, implementation may be slower. This may stem from the importance accorded to sectors that may have the potential for significant exports. Due to worldwide trade liberalization, a growing number of countries are becoming significant importers and exporters of food, and exporting countries are increasingly being forced to meet the requirements of their trading partners and to comply with all kinds of import rules and procedures. Many developed countries, such as the United States and EU countries, have now made implementation of the HACCP system a specific legal requirement for imported food products. As a result, many developing countries have been prompted to implement the strict HACCP regulations by means of adopting similar regulations in their own national legislation (Boutrif and Bessy, 1999).

However, HACCP can be expensive to implement and the costs of meeting the standards have proven to be a major problem for many developing countries. Therefore, in some countries and for some products, implementation of the HACCP system is only required where it concerns export products. The need to gain access to the European and American markets is often more influential in stimulating new regulations than protecting consumers in the home market. Thus, the Sri Lanka Fish Products (Export) Regulations of 1998 require implementation of HACCP for fish processing establishments that are allowed to export fish products. Similarly, the Belize Agricultural Health Authority (Food Safety) Regulations of 2001 establish that all food exporting enterprises shall be required to comply with HACCP guidelines.

(c) Exercising Control from Farm to Fork

Some twenty-five years ago, government agencies were used to inspecting the end product in order to determine whether food was safe and met the required specifications. However, during the 1980s developed countries increasingly arrived at the conclusion that it is impossible to provide adequate protection to the consumer by sampling and analysis of the final product. Many hazards enter the food chain at a variety of different points. Some can be controlled along the food chain through the application of good practices, such as good agricultural practices, good manufacturing practices and good hygienic practices, but classic inspection procedures are not sufficient to address all the relevant hazards in food production and to provide the necessary level of protection to consumers. Safety and quality must be built into the product right from its production through to consumption.

The introduction of preventive measures at all stages of the food production and distribution chain, rather than relying on inspection and rejection at the final stage, also makes better economic sense because unsuitable products can be stopped earlier along the chain. Thus there has been a shift over the years from retrospective control performed by government at the end of the line to control throughout the food chain. The overall trend in national food legislation is that all actors, from producer, processor, transporter and vendor to consumer - i.e., from farm to fork - are now being charged with responding to food safety and quality issues. The recent EU Regulation (EC) No. 178/2002 refers to the new integrated approach as follows:

“In order to ensure the safety of food, it is necessary to consider all aspects of the food production chain as a continuum from and including primary production and the production of animal feed up to and including sale or supply of food to the consumer because each element may have a potential impact on food safety”.

Equally, the Chilean Reglamento sanitario de los alimentos of 1996 states that the regulation applies to all stages of the food chain, from production to the sale of products, including transport and distribution. The Lithuanian Law on Food of 2000 also declares that all stages of preparation and sale of food to the consumer must be handled in accordance with the requirements of the law “from the field to the table”. The Latvian Food Law applies to all activities carried out in relation to food before its ultimate consumption. Finally, the definition of “food safety system” in the Belize Agricultural Health Authority (Food Safety) Regulations of 2001 includes any system employed in the production of food “from the farm or sea or other source of the food to the table for human consumption”.

Another key element of the integrated farm to fork approach is the concept of traceability, which means that it should be possible to trace and follow a food-producing animal, food, feed or any substance to be incorporated into a food or feed, through all stages of production, processing and distribution. Because unsafe food and feed will have to be withdrawn from the market, food businesses should have systems in place to identify their suppliers (one step below in the food chain) as well as those they have supplied (one step above). Thus, under the Estonian Food Act of 1999, food business operators have a recording obligation: they may only use raw material for food which is of identifiable origin, and they must maintain written records of obtained raw material for food and of the amount of food handled and distributed.

The application of the principle of traceability has been influenced by recent food scares that have demonstrated that identification is of vital importance. For example, the recent BSE crisis led to a traceability scheme for beef products under EU Regulation (EC) No. 1760/2000. For GMOs, the concept of traceability with regard to their deliberate release into the environment was introduced in EU Directive 2001/18, which will take effect from October 2002. However, the Directive does not provide for a complete approach towards implementation of the traceability principle. Therefore, proposals for new EU regulations concerning genetically modified (GM) food and feed and the traceability and labelling of food and feed products from GMOs are currently under preparation. The proposals streamline and unify existing provisions on GM food, including for the first time GM feed and, importantly, require the industry to have systems in place that identify to whom and from whom GM products are made available. It is expected that the proposals should enter into force in 2003 at the latest.

(d) Shifting Roles of Government and Industry

Inherent in the new integrated approach is the tendency to emphasize the primary responsibilities of the economic operators in the food and feed industry. Activities at all stages of the production and distribution process need to be carried out in such a manner that food products comply with the relevant provisions of food safety legislation. Recent food legislation shifts the focus of government activity from implementation and control, as it was previously, to auditing and oversight. This reflects current thinking that limited public resources and expertise are better applied to monitoring, and that industries themselves should guarantee the safety of products they place on the market.

For government regulators, therefore, the trend is clearly away from an enforcement-oriented approach and toward a more collaborative approach. This means that instead of simply seeking out and punishing violations, for example, legislation may charge food inspectors with the task of educating owners of food businesses with regard to proper procedures; assisting them in setting up their own controls; and auditing how food enterprises are exercising their own controls. Of course the end product sold by the retailer must meet the regulatory standards, and it must still be adequately and effectively controlled, and so government continues to have a back-up function, although it mainly monitors the controls exercised by the food industries themselves.

This approach is clearly illustrated in Estonia's 1999 Food Act, which outlines the supervisory responsibilities of government. The Act specifically states that the food business operators are required to verify the conformity of food, raw material for food and the handling thereof with established requirements, and to implement measures in order to ensure such verification. Similarly, the recent Lithuanian Law of 2000 on Food provides for growing industry responsibility and a system of auto-controls. Also in Australia, legislative changes reflect a shift from a prescriptive rules-driven approach to one that focuses on measures taken by the food industry itself.

(e) Establishing an Independent Food Control Authority

In many countries, responsibility for food control is shared among government ministries such as Health, Agriculture, Fisheries, Environment, Trade and Tourism. The roles and responsibilities of these units are quite different, and this sometimes leads to problems such as duplication of regulatory activity, increased bureaucracy, fragmentation and a lack of coordination. For example, the regulation and surveillance of meat and seafood is often separate from the regulation of other kinds of foods and food products. Similarly, export inspection systems are often located within the Ministry of Commerce or Trade while other food control activities are carried out by the Ministry of Health or Agriculture.

In addition to the fragmentation of responsibilities by sector, the national constitution or legislation may allocate different powers to federal/ national, state/provincial and municipal/local authorities. There may be wide variations in the level of expertise and in the availability of resources among different agencies or regions, and the responsibility for protecting public health may conflict with other policy goals, such as the facilitation of trade or the development of the agro-industrial sector. Controls may be exercised effectively in the urban centres, but sporadically in the regions. Some sectors of the food chain may be intensely scrutinized, because of the multiplicity of inspectors, whereas others may receive little or no regulatory attention.

Duplication among regulatory authorities results in increased costs of inspection, placing a greater burden on the economy and on industry, especially on small-scale producers in developing countries. This situation also prevails in some developed countries, although in many cases potential problems have been reduced through memoranda of understanding or other agreements between government units. These avoid duplication of efforts and confusion over roles and functions.

To combat the fragmentation of responsibilities, there is a growing tendency to restructure institutions by establishing a national food safety authority. Increasingly these authorities are becoming independent agencies not under the auspices of any ministry, enabling them to act independently and to serve in a coordinating role. Independent national food safety and control authorities have recently been established by principal or subsidiary legislation in countries such as Belize, Canada, Cape Verde, Ireland, Latvia and Spain. In 1995, Australia and New Zealand established one food authority for both countries.

National food authorities are generally responsible for policy development, risk assessment, standards development and coordination of food control activities. Day-to-day inspection responsibilities may remain with existing national, provincial or local agencies, or the authority may be charged with running the inspection programme. The legislation establishing the authority will prescribe the relationship of the authority to other inspection agencies, if any, and the jurisdiction of all relevant actors. The legislation also defines the authority's mandate, powers and responsibilities as well as its organizational structure.

The Irish Government initiated a review of its food safety systems in 1996, and the outcome was a recommendation to establish the Food Safety Authority of Ireland (FSAI) as a statutorily independent and scientific body, overseeing the regulation of the food industry. On 1 January 1999, the FSAI was formally established under the Food Safety Authority of Ireland Act. The FSAI operates the national food safety compliance programme and is also responsible for creating public awareness on food safety matters. This includes managing public relations and developing and implementing communications and educational policy for consumers, industry and enforcement officers. Similarly, the Canadian Food Inspection Agency was created in 1997 and is responsible for all federal food inspection, compliance and quarantine services. It develops and manages inspection, enforcement, compliance and control programmes and sets standards. It also collaborates with other levels of government and with NGOs, industry and trading partners, providing laboratory support, issuing emergency food recalls and conducting inspection, monitoring and compliance activities from farm to fork.

On a regional level, the establishment of the European Food Safety Authority (EFSA) under Regulation (EC) No. 178/2002 is considered to be a milestone. As a scientific risk assessment body that covers the whole food chain, the core function of EFSA will be to provide independent scientific advice which will form the basis for future policy and legislation, including on GMOs. In addition, EFSA is responsible for the operation of a rapid alert system for food and feed.

Belize has gone yet one more step, combining animal health and plant protection and some food safety responsibilities into one agency, the Belize Agricultural Health Authority. It carries out inspections, and after an initial period with external funding support, it is expected to act on a fee-for-service basis and to become self-sustaining. The Belizean model has triggered much interest in the Caribbean region, where discussions and feasibility studies are being carried out on the establishment of a central Caribbean Agricultural Health and Food Safety Agency.

(f) Regulating Organic Production

With the organic industry constantly growing over the past decade, and with the increase in international trade in organic products, governments have begun to regulate organic agriculture mainly with a view to entering regulated markets and protecting consumers from fraudulent practices. International standards were developed first for the private sector by the International Federation of Organic Agriculture Movements: the International Basic Standards for Organic Production and Processing. Then, under Codex, the abovementioned Guidelines for Production, Processing, Labelling and Marketing of Organically Produced Foods were adopted to serve as minimum standards for the organic farming industry, for use by governments and private certification bodies. They are also useful in the development of national laws and regulations on organic agriculture.

The EU was the first organ to enact legislation on organic production through Regulation 2092/91, which was adopted in response to rising consumer interest in organic products. The regulation describes the minimum standards for organic farming and covers rules on production, labelling and inspection. It is intended to allow the organic industry to benefit from fair competition among producers and to gain credibility vis-à-vis consumers.

The technical details contained in the regulation may be amended, amplified or further described in order to take account of experience gained by the organic industry. Member states of the EU must complement Regulation 2092/91 with their national legislation, setting up their own inspection schemes and designating their own inspection authorities. States must meet the requirements of the regulation, although they may also enact more strict legislation concerning rules of production for organic agriculture. Denmark's Organic Foods Act of 1999, for instance, has stricter standards in some areas of the organic production process, including strict rules for the transportation and slaughtering of organically produced livestock.

As the EU is a large importer of organic products, it encourages many countries to enter the organic production market. In turn, several countries willing to access the EU market have used Regulation 2092/91 as a model for developing their domestic legislation. For example, in Central Europe, Hungary's regulations on organic agriculture (Decree No. 140 of 1999) were modelled after the EU legislation, including the establishment of an inspection system, in order to support the country's export opportunities. Estonia's Organic Agriculture Act (No. 823 of 1997) also follows the EU model and is intended to lay the foundations of a system that will assure the quality of ecologically or bio-dynamically (organically) grown and handled foodstuffs, and the development of environmentally sustainable agricultural production. Likewise, in North Africa, Tunisia's 1999 basic law on organic agriculture follows the EU model, as do the law's implementing regulations, enacted from 1999 through 2001. With this legislation, Tunisia's organic industry can access the foreign markets, including the EU market, while also supplying its domestic market.

(g) Regulating Street Foods

The images of the working father returning home for a hot lunch and of family dinners prepared by mother at home are outdated in most developed countries, and in the developing world growing urbanization is causing similar changes. Working families, greater distances between home and work and escalating time pressures mean greater numbers of people eating food outside the home. Street foods, i.e., food and drinks that are sold for immediate consumption at (often unapproved) points of sale, are an essential part of the food service landscape of most cities, especially in many developing countries, and they fill an important gap.

Street food vending employs millions, in many cases women, and street food vendors meet basic food needs of large groups of people far from their homes during the working day. However, food safety can be a major concern, as street foods are generally prepared and sold under unhygienic conditions, with limited access to safe water, sanitary services, refrigeration and garbage disposal facilities. Hence street foods pose a higher risk of food poisoning from microbial contamination and cross-contamination, as well as from improper use of food additives, adulteration and environmental contamination. Surveys of street foods in Africa, Asia, Latin America and the Caribbean confirm these concerns.

Protection of consumers against health hazards from street foods calls for comprehensive measures, in particular at the local level. Legislation should be accompanied by community outreach programmes including training for food vendors, education of consumers and infrastructure support. However, regulation in many countries has not kept pace with the changes in food preparation, sale and consumption of street foods. Legislation that was developed with another model in mind may contain no provisions specifically dealing with the issue of street foods, and may not even have existing general provisions that can be interpreted to apply to street foods.

The Codex Alimentarius Commission (Codex), which, as noted, sets food safety standards worldwide, has also been working on street foods. Through its Regional Coordinating Committees, Codex has created guidance documents that will serve as the basis for national and local regulations on street foods. The first regional document was produced for Latin America and the Caribbean in 1995. Guidelines produced for Africa followed in 1997, setting policies for licensing vendors, establishing street food advisory services and educating consumers about hygienic practices. These documents will serve as the basis for a regional code of practice, which may be adapted by each country and enforced by local authorities.

Regulation of street foods can take place through a specific mention in the main food law, through subsidiary legislation issued under the law, through local by-laws and administrative decrees or through codes of practice. If the main food law gives the Minister broad power to take action to prevent food-borne disease and to regulate the production and sale of food in the country, this should be a sufficient basis on which to elaborate regulations on street foods. On the other hand, the advantage of regulating street foods through municipal by-laws or decrees is that local solutions can be found for local problems, as local authorities are most familiar with the regulatory needs and staffing and resource constraints. Several countries, including Burkina Faso, Ghana, India, Nepal, Philippines, Senegal and South Africa, have recently taken steps toward regulating the quality and control of street foods. Development and implementation of codes of hygienic practices have also been successfully tried in some developing countries. This promises to be an area of continuing interest, research and concern in the coming years.

3.2.3. Guidelines for Food Legislation

The preceding section outlined some of the trends that have appeared in national legislation regulating food safety and food control in recent years. Some government officials seeking to update their food legislation have requested FAO to provide updated guidelines for the development of modern food legislation, in view of the fact that the 1979 FAO/WHO Model Food Law in circulation is woefully outdated and inadequate. Legal expertise in food legislation, regulation and standards is not widely available, and the Model Food Law, despite its weaknesses, has filled a gap.

As noted in Chapter 1, the process of developing and updating national legislation should be carried out with extensive stakeholder and agency participation and consultation, in order to take account of local economic, political, institutional and legal circumstances. Therefore the development and use of model laws should in general be discouraged. However, because the 1979 FAO/WHO Model Food Law is still in circulation and government officials continue to apply it, it has been decided to update it and FAO is currently drafting a new version. The New Model Food Law is not expected to be enacted wholesale, but instead should be considered as a blueprint for the development of legislation tailored to national needs.

A modern basic food law generally contains provisions falling into the following categories: definitions and principles to be applied in the law's interpretation; the objectives and scope of the law; the administrative structures that will operate under authority of the law, including inspection and licensing services; offences and penalties; legislation that the law repeals or amends; and the areas in which subsidiary regulations can be elaborated. Regulations usually cover such matters as: (i) contents, handling, packaging and labelling of food products; (ii) specific food products, such as novel foods, baby foods and special dietetic foods; (iii) organizational or coordinating matters concerning, for example, the functioning of the Food Board, the issuance of licences and the conduct of the inspection and analysis services; and (iv) schedules that may contain lists of inspection and analysis fees, models for application forms or certificates and other detailed matters.

The form of the law each country decides to enact will depend on the nation's legal system and legislative tradition. In general, however, a food law will generally be kept as basic as possible, with specific requirements regarding food additives, residues, contaminants, labelling and food standards dealt with in subsidiary legislation. Because all details are confined to the regulations and standards, changes can be more easily and quickly made. For example, regulations and standards may need to be changed in response to scientific advancements, and instead of having to approach Parliament to amend the law, the relevant Minister or Ministers will be given the power to issue any appropriate regulations or schedules and can therefore act to take account of the new developments.

IV. CONCLUSION

Since Rio, the international trade of food has grown enormously as countries rely on each other to secure an adequate and varied food supply through the import and export of food products. Opportunities for growth are encouraged through free trade on the basis of the WTO agreements. In the coming years, countries will have improved access to export markets, but this will be accompanied by greater competition and the need to ensure confidence in the safety of the food supply. This can be achieved through the application of the “farm to fork” principle, according to which all links in the food chain are now being checked to assure food safety and quality, and through the incorporation of a preventive approach to food safety.

On the other hand, new and more sophisticated technologies may raise new risks of food-borne disease, which do not respect national boundaries. Citizens concerned about biological, chemical and environmental hazards, including the potential risks from GMOs, will likely continue to call for greater attention and resources to be allocated to food safety issues. National, regional and international information-sharing can assist in combating consumers' fears, and research can improve the scientific understanding of food-related hazards.

Equally, continuing interest in combating food insecurity and hunger through a human rights approach, building on recent developments, gives rise to some optimism that the right to adequate food may become more widely recognized as a “real” human right, clearer and better implemented in the future. Until now, the right to food and other socio-economic rights have suffered from lack of attention and ideological battles, and are in many respects still underdeveloped and frequently misunderstood. Sustained attention and commitment to defining and enforcing the right to adequate food, whether through voluntary guide-lines, an international code of conduct, increased legislative activities at the national level or heightened awareness in governments, courts and human rights bodies, can only help in meeting the goals of reducing the numbers of the world's hungry.

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