Agricultural law current issues from a global perspective

1Mariagrazia AlabresePart I Environmental Protection and Food Security at the Cross-Roads with Agricultural Law Sustainable Agricultural Production, Environmental Sustainability and Food

LITES – Legal Issues in

Transdisciplinary Environmental Studies 1

Series Editors: Massimo Monteduro · Saverio Di Benedetto

is based on the assumption that the process of dialogue and cultural integrationbetween law, life and earth sciences, and social and human sciences should bestrengthened and updated, by relying on transdisciplinary research platforms such

as agroecology, environmental studies, environmental science, and sustainabilityscience According to the new paradigm of social-ecological systems (SES), theconcept of the environment is conceived as a complex system of relationshipsbetween ecological and social factors, including the cultural and economic ones.The primary purpose of law, in this conceptual framework, is to preside over thedurability of the essential conditions for the survival of the social-ecological systemsand the protection of life at all scales (of individuals, societies, ecosystems).LITES Series aims to explore the relationships between legal and environmentalsciences according to a transdisciplinary perspective On the one hand, natural andsocial environmental sciences need to integrate the point of view of law: this entails

to study the complexities of SES in the light of normative and institutional ables, with the lens of categories such as rights, duties, powers, responsibilities, andprocedural safeguards On the other hand, law is called upon to review its owninternal geometries, confronting them with the holistic approach toward sustain-ability in the scientific debate Accordingly, law should address the need ofchanging the approach that so far has led to both hypertrophy and disarticulationwhen regulating closely linked matters such as the environment, agriculture, for-estry, landscape and cultural heritage, energy, and food

vari-LITES Series is addressed to a wide international and interdisciplinary ship, targeting academic researchers and scholars, experts and practitioner lawyers,public administrations, judges, and law-makers Its volume editors and contributingauthors have different backgrounds and come from all over the world in order toprovide a forum for discussion and normative analysis about new legal frontiers ofhuman-environment interactions across disciplinary barriers

reader-More information about this series athttp://www.springer.com/series/15038

Silvia Rolandi • Andrea Saba

Editors

Agricultural Law

Current Issues from a Global Perspective

Scuola Superiore Sant’AnnaPisa, Italy

Scuola Superiore Sant’AnnaPisa, Italy

LITES – Legal Issues in Transdisciplinary Environmental Studies

ISBN 978-3-319-64755-5 ISBN 978-3-319-64756-2 (eBook)

DOI 10.1007/978-3-319-64756-2

Library of Congress Control Number: 2017956119

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Legal scholars are paying increasing attention to agricultural issues Nevertheless,the field largely remains an underresearched area of law and is considered histor-ically as a specific area of research for life sciences and economics The number andscope of questions that revolve around agricultural issues are increasingly requiringthe legal research community to adopt a new approach Challenges, such as thegovernance of the food system worldwide, the maintenance of agricultural naturalresources, as well as land governance, are making it necessary to address agri-foodand agri-environmental issues with a globalized approach Against this background,the book aims to address some of the complexities of the agri-food and agri-environmental regimes.

The Introduction traces the evolution of agricultural law and provides an view of the new social and environmental challenges that will need to be addressed.Emerging issues are placed in the broader conceptual context of a globalperspective

over-The chapters are grouped into three main parts, each of which has its own briefintroduction

Part I covers the governance of natural resources and their prominence intackling food insecurity Every agricultural activity begins with the resourcesprovided by nature While in the past they were traditionally regulated by nationalgovernments, today their regulation is increasingly being addressed through aframework of international governance This is due to the necessity to preservethe availability of natural resources and the conservation of ecosystems while at thesame time responding to the growing world population and the relating demand forfood, in particular for more protein-rich diets, as well as other nonfood agriculturalproducts With regard to these aspects, this part examines the concepts of sustain-able agriculture and agro-ecosystem services in connection with food security.Part II deals with the regulation of the main product of the agricultural activity—food Today, the food production chain is being expanded by technological devel-opments, interactions between “public” and “private” standards, food safety issues,animal welfare standards, and markets This part outlines the answers that agri-food

v

regulations are able to provide in order to meet new and evolving consumerinterests and concerns Novel foods, animal welfare, direct sales of specific foodproducts, and the development of e-commerce in the food sector are also covered.Part III concerns the social, environmental, and legal consequences of a renewedinterest in agricultural investment Top-down interventions in agricultural systems,led by both national and international public and private actors, often clash with thevulnerability of customary local systems on which the livelihood of a rural popu-lation relies The evolution and the interplay of different legal systems with regard

to land tenure, environmental concerns, and investments in agriculture arediscussed, drawing on both the most recent international debate as well as casestudies

Margherita BrunoriSilvia RolandiAndrea Saba

Agricultural Law from a Global Perspective: An Introduction 1Mariagrazia Alabrese

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

with Agricultural Law

Sustainable Agricultural Production, Environmental Sustainability

and Food Security: How to Frame the Legal Intervention 15Elisa Morgera and Andrea Saba

The Ecological and Perpetual Dimensions of European Food Security:The Case for Sustainable Agriculture 19Alicia Epstein

International Law on Plant Genetic Resources for Food

and Agriculture: Towards a New Balance? 53Anna G Micara

Results-Based Agri-Environmental Schemes for Delivering EcosystemServices in the EU: Established Issues and Emerging Trends 83Andrea Saba

The Legal Instruments for Agri-Environmental Goals and the

Influence of International Factors: The Case of Swiss Agricultural

Policies 123Christa Preisig

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

Regulation

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

Regulation 155Vito Rubino

vii

Insects in Agriculture: Traditional Roles and Beyond 163Valeria Paganizza

Animal Welfare Standards in Agriculture: Drivers, Implications,

Interface? 181Diane Ryland

Legal Pluralism and the Regulation of Raw Milk Sales in Canada:

Creating Space for Multiple Normative Orders at the Food

Policy Table 211Sarah Berger Richardson

Food E-Commerce as a New Tool for the Growth of the Economy

European Legal Framework for Information of Prepacked Food SoldOnline 231Silvia Rolandi

Part III Land Tenure, Investment Law and Agriculture

Land Governance, Investment Law, Agriculture, and the Rights

of Local Populations 247Adriana Bessa and Margherita Brunori

Access to Land and Security of Tenure in the Resolutions

of the United Nations General Assembly 255Margherita Brunori

Global Land Rush, Water Grabbing and the Human Right

to Water 293Francesca Spagnuolo

The Regulatory Vicious Circle of Investment Operations

in Agriculture 311Federica Violi

Between Customary and Statutory Tenure: Understanding

Large-Scale Land Acquisitions in Zambia 341Margherita Baldarelli

Agricultural Land Ownership as Food Sovereignty: The Case

of Slovakia 367Katarı´na Dirgasova´ and Jarmila Lazı´kova´

interna-It is also challenging from a “political” viewpoint because it tackles key complexissues, such as the governance of the global food system, the maintenance ofagricultural natural resources, the world trade of commodities, the agribusinesssector As recently reported, “a strong agricultural economy is the key to a peacefulsociety Without a reliable supply of safe, affordable food, the future will be one offamine, disease, and disorder on a global scale.”2In fact, good agriculture policiesand the modernization of the agri-food sector play a huge role in one of the mostsignificant political and socioeconomic challenges that States are currently facing,notably in the area of migration, which usually originates from rural regions.3This branch of law is inspiring because it deals with fundamental rights andvalues It looks at the management of natural resources and securing the very basicneeds of human beings in every corner of the world Agriculture is an economic

© Springer International Publishing AG 2017

M Alabrese et al (eds.), Agricultural Law, LITES – Legal Issues in

Transdisciplinary Environmental Studies, DOI 10.1007/978-3-319-64756-2_1

1

activity that not only produces food and fiber but also creates both tangible andintangible values Regulating agriculture also involves rural development and, inmost cases, the role of women and gender equality.4It also means securing safefood and water, protecting the environment, and preserving the landscape As NeilHamilton wrote many years ago: “Agricultural lawyers play a fundamental role inservicing the legal needs of the food and agricultural sector and in helping [nations]craft the legal and institutional arrangements responsible for promoting a produc-tive, profitable, and sustainable agriculture.” Indeed, recognizing that “the law iswhat gives legs to policy,” he stressed the fundamental role that lawyers and legalinstitutions can play in shaping the future of agriculture.5

Against this background, questions arise as to what the future of agriculture isand what legal framework is appropriate Defining the content of agricultural law isurgently needed in the face of the dramatic changes that have taken place over thelast few years The present chapter looks at the definition of agricultural law Itdescribes the intersection of agricultural law with other related fields, such as foodand environmental law Finally, it portrays the development and relation of agri-cultural law to all the aforementioned issues and calls for the adoption a globalapproach

Defining “agricultural law” is not easy The literature on the subject is vast andcannot be reported in its entirety This brief analysis presents some of the highlights

of the debate around the definition of agricultural law in order to set the scene forthe following chapters

If agricultural law is described as the system of laws and principles regulatingagriculture, the first question that arises is what exactly agriculture is Traditionally,this question has been addressed in order to draw the boundaries for the application

of a set of exemptions and rules favoring the sector The inclusion of an activity oroperation as agricultural resulted in the application of a more favorable legalregime With regard to the USA, for example, “An increasingly important issuemay be whether some food producing operations lose their status as agricultural ifthey reach a certain size or are organized in certain ways.”6This thus confirms thelink between agriculturalstatus (in the specific case attached to the operator’s sizeand organization) and the special discipline reserved for an economic activity Thequestion as to the meaning of agriculture has also been triggered by the need to dealwith the legal framework of international agricultural trade Smith stresses that it is

4 See IDLO ( 2016 ), a recent and interesting study on the role of law and policies in enabling gender equality in rural contexts with regard to food security, land rights and agricultural development.

5 Hamilton ( 1993 ), pp 211–212.

6 Hamilton ( 1993 ), p 213.

possible “to shift around between a number of different but sometimes relatedmeanings,” eventually focusing on the vision of “agriculture as the growth of foodproducts” and “as a promoter of broader goals,” as in the case of multifunctionalagriculture.7

The academic literature has debated the definition and the content of agricultureextensively in defining agricultural law Drawing the boundaries of the subject wasdeemed as fundamental not only for economic and practical reasons (to identify thecases when a producer could be subjected to protective treatment) but also due tothe emergence of a new field of law, separate from both civil and commercial laws.Indeed, a lack of focus and precision could hinder the development of such aprocess The construction of an autonomous branch of law presupposes the exis-tence of a robust apparatus of rules and principles organized in a systemic fashion

In addition, it implies the recognition of appropriate specific features that coulddistinguish it as a separate subject Such recognition is, in turn, dependent on anexact understanding of the agricultural sector

the Definition of Agriculture

The French and Italian legal frameworks provide a fascinating definition of culture It stems from a breakthrough theory developed in the 1970s by the Italianscholar Antonio Carrozza8and further investigated by Alfredo Massart,9which wastransposed into a French piece of legislation in 1988.10In 2001,11it was incorpo-rated into the Italian Civil Code article on the agricultural entrepreneur According

agri-to this theory, agriculture is made up of a set of activities devoted agri-to the care anddevelopment of an animal and/or vegetal biological life cycle, which depends onthe deployment of natural resources, such as land and water This description ofagriculture was more developed and precise than the common one referring basi-cally to the cultivation of the soil and the rearing of animals On the one hand,focusing on the care of the biological life cycle of living beings, both animal andvegetal, it extended the range of activities included in the legal notion of agriculture

by including the growing of crops without the use of land (e.g., hydroponics) andfish farming It also considered fur or race horse farming as agriculture activities

and not only the rearing of animals to provide food, wool, milk, which havetraditionally been included in the concept of agriculture due to their assumed link

to farmland In the same vein, growing nonfood crops, such as cotton, flowers orenergy feedstock fit the definition of agriculture, as such activities consist in thecare and development of these plants It is also worth noting that this theory carriedthe risk that any activity connected to the development of living beings, as in thecase of bacteria for the pharmaceutical industry, could be labeled as agricultural andregulated by agricultural law In order to avoid this risk, the Italian legal definitionmade it clear that the relevant activities had to be suitable for carrying out on theland, although in the specific cases they were not exploiting the soil.12Thus, whenthe land was not suitable for breeding animals or growing plants, as in the case ofbacteria, the related activity was not deemed to be “agricultural.” The legaldefinition of agriculture is also complemented by many other activities that can

be carried out by the agricultural entrepreneur, under certain conditions, under thesame legal treatment These further activities, such as the processing and directselling of agri-food products, providing services (agro-environmental or more

“cultural” services, such as those related to hosting people on farms to educatethem about farming and the countryside), etc., which significantly broadened thecontent of agricultural law, were coherent with the EU trend in agricultural policy,

as will be briefly described

In the USA, scholars of agricultural law focused on the notion of agriculture,echoing the biological life cycle theory In the same fashion, they assumed that

“agriculture is an unusual if not unique industry in that it relies on the production ofliving things It is therefore vulnerable to natural processes and natural forces; it isnot truly under human control as it is inextricably intertwined with nature Thisgives the industry a special status [ .].”13

in Terms of Its Regulatory Schemes

An alternative approach to defining agricultural law without focusing on a legaldefinition of agriculture is through the characterization of its regulatory schemes,i.e each set of rules applicable to a specific aspect of agri-food activities, such asagricultural contracts, the legal system of the farmland, etc This method has beenrecently used by the Hungarian scholars dealing with agricultural law In this case,the objects listed to identify the content of agricultural law are agricultural holding,agricultural producer, agricultural activity, agricultural product, foodstuff, ruralarea.14Here, the definition of agricultural law is completely focused on highlighting

12 See Costato ( 2003 ), pp 3–4.

13 Schneider ( 2009 ), p 2.

14 Raisz and Szila´gyi ( 2012 ), p 109 and Szila´gyi ( 2009 ).

the several sets of rules that can be ascribed to the agricultural system, withoutmuch concern for the possible legal notion of agriculture This pattern is also wellknown in Italy as Carrozza developed it further in order to draw the boundaries ofagricultural law with a bottom-up approach.15 This consisted in identifying thenorms regulating the many stages of agricultural production in the national andsupranational legal systems, together with several other aspects of the agriculturalsector The aim was to group them into coherent sets of rules that could representthe backbone of agricultural law.

The aforementioned Hungarian definition of agricultural law is of particular interest

in terms of the recent attempts to define agricultural law as a separate legal branch,particular and original in its subject In Hungary, this process was finalized in

2005 at the National Conference of Agricultural Lawyers, where a resolution wasadopted “on the Standard Conception concerning Agricultural Law as a Discipline

of Legal Education.”16

The same development has affected other countries and is a common feature ofagricultural law In Italy, for example, the first academic journal completelydevoted to agricultural law (Rivista di Diritto Agrario) dates back to 1922, aswell as the first academic chair, which was established in Tuscany in the sameyear (indeed, Italy is usually referred to as the cradle of agricultural law).17Nonetheless, the academic discussion around the autonomy of the legal branch ofagricultural law was particularly controversial and survived up to the 1980s.Looking at agricultural law from a global perspective, it is worth mentioning that

it is not always perceived as an autonomous branch of law There are countrieswhere it is mainly studied as a field of land law, as in the UK,18or within the widerarea of civil law, as in Spain.19 In the USA and in Latin American countries,agricultural law is usually recognized as an autonomous branch of law In theUnited States, the development of agricultural law into an acknowledged field oflaw started in the late 1970s.20 In Latin America, the discipline is very well

15 Carrozza ( 1975b ).

16 Raisz and Szila´gyi ( 2012 ), p 107 With regard to Hungarian agricultural law, the emergence of a liberalized agricultural sector was only possible in 1989/90 after many years of totalitarian socialism.

17 See Zeledo´n Zeledo´n ( 2015 ).

18 See Rodgers ( 2016 ), one of the few books devoted to agricultural law in the UK that “is principally a book about agricultural land and the law governing its tenure and use” (the Author

at 3).

19 In Spain agricultural matters are widely investigated by many scholars For a view on tural law in Spain, see Sa´nchez Herna´ndez ( 2002 ) and Espı´n Alba and Vattier Fuenzalida ( 2005 ).

agricul-20 Hamilton ( 1990 ), p 513.

developed, and there are often special agricultural tribunals, as in the cases of CostaRica, Bolivia, Panama, Mexico, and Venezuela.

The recognition of agricultural law as an autonomous branch of law has alwaysbeen considered as a significant step in its further evolution With this objective inmind, in 1988 a Worldwide Academic Union of Agricultural Lawyers (UMAU)was established in Pisa (Italy) by a group of academics from Europe, Africa, andSouth America.21It enables scholars from all over the world to cooperate and shareexperiences It plays a central role in the study and further development of agricul-tural law through a comparative approach, with a view to increasing understandingaround the globe and promoting relevant social research

At the EU level, the definition of agriculture can be inferred from article 38(1) ofthe Treaty on the Functioning of the European Union (ex article 32 TCE), according

to which“‘Agricultural products’ means the products of the soil, of stockfarmingand of fisheries and products of first-stage processing directly related to theseproducts.” In this definition, however, the emphasis is on the products rather thanthe activities Despite this, the content and scope of the regulation dealing with suchproducts are clear, and there is a hint of agricultural law from the EU perspective.Things become more complicated with article 38(3), according to which Title III ofthe Treaty, which is the Title devoted to agriculture (i.e., articles 39–44), applies tothe products listed in Annex I Thus, while article 38(1) explains the meaning of

“agricultural products” through a broad definition, article 38(3) limits the tion of Title III (mainly related to competition and aids) only to certain products.This statement is confusing for those who are seeking an EU legal definition ofagriculture, and clearly highlights all the limitations of listings when it comes to thelaw Indeed, on the one hand, the products listed in Annex I are notall the possibleproducts related to the soil, stock farming and fisheries: wood, for example, is notincluded, which is not a matter of being a nonfood product, as tobacco and flax arelisted On the other hand, the Annex includes food that is beyond a “first-stage ofprocessing.”22Such “bias” in the Annex can be understood by considering that itsaim was not to provide a definition of agriculture Rather, in order to design anexceptional regime, it collected the main products that were traditionally produced

applica-by the agricultural sectors in the first six Member States that founded the EuropeanEconomic Community (i.e., Belgium, France, Italy, Luxembourg, the Netherlands,and West Germany) As far as the processed food products listed in the Annex areconcerned, their inclusion was due to the “close economic interdependence

21 It is still working and promotes agricultural law and its aims See http://www.union-umau.org Accessed 15 December 2016.

22 See Manservisi ( 1990 ) and Costato ( 2003 ).

between them and the basic products, so that it would not be justifiable to apply theagricultural system to the basic products, while applying to the processed productsthe general rules of the Treaty.”23Moreover, as the EU regime is essentially marketoriented and generally related to the application of a special treatment, its focus is

on the products It explains the reference to the “products of fisheries,” which arethe result of catching fish, i.e not an agricultural activity, instead of the rearing offish, which consists in the care and development of a biological cycle

The evolution of the EU policy on agriculture, which has been adding mental, ethical, and social aims to productive and economic ones, led to the focus

environ-on the notienviron-on of “agriculture” in additienviron-on to “agricultural products.” Indeed, environ-one ofthe EU pieces of legislation establishing a pivotal review of the agricultural policydescribed “agricultural activity,” for the purposes of the regulation, as “the produc-tion, rearing or growing of agricultural products including harvesting, milking,breeding animals and keeping animals for farming purposes, or maintaining theland in good agricultural and environmental condition.”24 In this vein, the latestregulation on the Common Agricultural Policy provides a more accurate definition,stating that “‘agricultural activity’ means: (i) production, rearing or growing ofagricultural products, including harvesting, milking, breeding animals, and keepinganimals for farming purposes, (ii) maintaining an agricultural area in a state whichmakes it suitable for grazing or cultivation without preparatory action going beyondusual agricultural methods and machineries, based on criteria established by Mem-ber States on the basis of a framework established by the Commission, or (iii)carrying out a minimum activity, defined by Member States, on agricultural areasnaturally kept in a state suitable for grazing or cultivation.”25This definition is onlyone of the signals showing how “the European Model of Agriculture” has broad-ened its objectives over the years Starting from late 1990s, it has decisively shiftedtowards “multifunctionality,” as Cardwell clearly explains in a seminal book on thesubject.26“Multifunctionality,” which has developed within an international frame-work, refers to the idea that agriculture jointly produces multiple commodity andnon-commodity outputs, some of which exhibit the characteristics of externalities

or public goods According to this vision, agriculture fulfills several functions

23 CJEU, Case C-185/73 Hauptzollamt Bielefeld v K €onig [1974], para 12.

24 Article 2(c), Regulation (EC) 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) 2019/93, (EC) 1452/2001, (EC) 1453/2001, (EC) 1454/2001, (EC) 1868/94, (EC) 1251/1999, (EC) 1254/1999, (EC) 1673/2000, (EEC) 2358/

71 and (EC) 2529/2001, OJ [2003] L 270.

25 Article 4(c), Regulation (EU) 1307/2013 of the European Parliament and of the Council of

17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and repealing Council Regulation (EC) 637/

2008 and Council Regulation (EC) No 73/2009, OJ [2013] L 347.

26 Cardwell ( 2004 ) The shift started in 1997 with “Agenda 2000,” which was also due to the need

to comply with the WTO requirements, especially those in the “Agreement of Agriculture”; see Borghi ( 2004 ).

related to rural development, the environment, food safety, food quality, animalhealth, and welfare “The introduction of the concept of multifunctionality [ .]recognises that beyond its primary function of supplying food and fibre, agriculturalactivity can also shape the landscape, provide environmental benefits such as landconservation, the sustainable management of renewable natural resources and thepreservation of biodiversity, and contribute to the socio-economic viability of manyrural areas.”27One of the consequences of this major shift has been to move theattention from a “produce more for less (money)” approach to a “produce more withless (resources)” approach It also highlighted the particular essence of agriculture

as being intertwined with the ecosystems, its unique role in responding to mental needs by providing food, and its overall contribution to a human-rights-oriented development

funda-That said, it is not surprising that US scholars have witnessed a similar trend.Schneider defines agricultural law as “the study of the network of laws and policiesthat apply to the production, marketing, and sale of agricultural products, i.e., thefood we eat, the natural fibers we wear, and increasingly, the bio-fuels that run ourvehicles.”28However, she firmly calls for a reconsideration of the framework of thesubject, concluding that “‘Agricultural law’ should be recast as the law of food,farming, and sustainability, with the sustainable production and delivery of healthyfood to consumers as its central goal.”29Such a reframing underlies the extension ofthe content of agricultural law by focusing on the many “functions” that the sectorcan fulfill

The shape of current agricultural law could be described as the complex anddynamic set of laws, regulations, policies, and principles established undermultilevel authorities, both public and private, governing the agricultural systemand its intersection with food and environmental systems

The reference to systems instead of activities helps in emphasizing the faceted structures involved, their socioeconomic outcomes, and complex links Thesystem approach underlines the dependence of agricultural productivity on the state

multi-of natural resources, which, in turn, is linked to the environmental impacts multi-of related or energy-related activities In addition, this approach sheds light on the web

food-of needs and aspirations that are dependent on the availability food-of, and access to,food The availability of, and access to, food are, in turn, dependent on agriculturalproductivity, but they also raise other issues, such as trade and rural developmentpolicies, which need to be taken into account within the system approach

27 See OECD ( 2001 ).

28 Schneider ( 2010 ), p 935.

29 Schneider ( 2010 ), p 937.

The reference to a multilevel legal framework refers to international, regional,national and local principles and regulations forming the law of the agriculturalsystem The public and private entities referred to as sources of the relevant rulesreflect the growing phenomenon of coregulation in the agri-food sector, whichinvolves public and private actors and usually results in private standards and goodpractices.30

In conclusion, three main remarks can be made regarding the features of

“modern” agricultural law The first is related to the core of the subject It can nolonger be asserted that the only objective of agricultural law is to regulate theproduce and market of food and fiber.31The “classical” concept of agricultural lawrevolved chiefly around the regulation of farmland From the 1990s, environmentalconcerns and the rapid industrialization of agriculture have added new subjects tothe field of agricultural law.32As soon as social, ethical, and environmental factorswere given prominence, several new issues arose The worldwide effects of landuse patterns and the limits of natural resources started to be confronted The issue offood security and its intersection with international trade trajectories was at stake.The result of this development of agricultural law contributed to the widening of thelegal fields involved in the regulation of the sector, which, in the Introduction to thischapter, is characterized as one of the “challenges” posed by this branch of law.Monteduro argues that this feature represents a “deconstruction/fragmentation ofthe complex universe of rus into elementary and disjointed legal particles.”33Agricultural lawyers would rather address it as a natural consequence of thegrowing complexity of the matter They would characterize the several sets ofrules concerned as building blocks of the agricultural legal system and would dealwith them with the aim of coherently systematizing the norms Indeed, the linksbetween upstream and downstream activities with agriculture, as well as its multi-ple functions, create a continuum in the relevant legal framework rather than afragmentation This thus makes it difficult to address the agricultural sector withouthandling several fields of law.34

The second remark relates to the intersection of agricultural law with closelyconnected branches of law, such as food law and environmental law The product ofthis intersection constitutes a significant part of agricultural law This part some-times stands with the labels of agri-food law and agri-environmental law in order toemphasize the overlapping areas of the legal frameworks governing agriculture, theenvironment, and the food system In the case of agri-food law, the relationshipwith agricultural law looks stronger since “the agricultural production stage repre-sents a necessary stage in the food process”35 and a large number of food

30 Garcia Martinez et al ( 2007 ) and Busch ( 2011 ).

regulations are applicable to the primary production That said, it is worth stressingthat agriculture also produces nonfood products, which means that agricultural lawcannot be dissolved into food law As far as environmental law is concerned, thereare many links between agriculture, natural resources, and climate change.36Thenexus is well known between the need for agriculture to protect natural resourcesthat provide the basis for continued agricultural productivity and the farmingpractices that result in the contamination and degradation of the environment andecosystems The overlap is often referred to as agri-environmental law in order toidentify the intersection, i.e the cases when both environmental rules regulateagricultural pollution and agricultural rules regulate environmental protection.Agricultural lawyers treat this convergence zone, which includes, inter alia,water, bioenergy, and pesticide regulations, without usually covering the manyenvironmental policies not related to farming.

The third and final remark on current agricultural law focuses on its globaldimension The multifaceted features of the food and agriculture system, as well asthe recent phenomenon of the cross-border fragmentation of production character-izing the agri-food chains, highlight the need to adopt a globalized approach Theaforementioned “political challenges” such as food security, environmental protec-tion, climate change, and their strong ties with hot international issues such asmigration, peace, and political stability are all indicators of the economic, social,and political pressures that current agricultural law and policy are facing world-wide These pressures require a comprehensive and global vision This picturepresents a fundamental challenge to agricultural lawyers They need to understandthe complexities of cross-border agricultural regimes, to map out the hottest issues

at stake, and to address the rapidly growing phenomena affecting world agricultureand, consequently, many fundamental rights Agricultural lawyers are required toprovide an adequate and comprehensive conceptual tool to address the growinganalytical complexity of the global food system and the cross-border effects of theagricultural models They also need to identify the interests, values, and aims thatshape global agricultural law This could entail a reconceptualization using ateleological approach, that is, describing agricultural law by the globally validpurposes it serves, such as, among others, development and food security Thisreconceptualization also implies drawing up comprehensive global principles,which capture the universal essence of the matter and which inform the multilevelsets of laws and regulations that govern the agri-food systems all over the world.Despite the fact that different agricultural models require different national andregional laws and policies, the aforementioned dramatic cross-border developments

no longer allow domestic laws to exist in isolation These developments presentpressing issues of universalism that requires a principle-based framework foragriculture focused on the need to respond to the global political challenges ofthe agri-food system

36 Monteduro et al ( 2015 ): The relationship between agricultural law and environmental law is dealt with in some detail by several authors in relation to their national systems.

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Carrozza A (1975b) L ’individuazione del diritto agrario per mezzo dei suoi istituti Rivista di diritto civile 21:107–178

Costato L (2003) Trattato breve di diritto agrario italiano e comunitario Cedam, Padova Espı´n Alba I, Vattier Fuenzalida CS (2005) Derecho Agrario Reus Editorial, Madrid

FAO (2016) Migration, agriculture and rural development Addressing the root causes of tion and harnessing its potential for development FAO, Rome

migra-Garcia Martinez M et al (2007) Co-regulation as a possible model for food safety governance: opportunities for public–private partnerships Food Policy 32(3):299–314

Hamilton N (1990) The study of agricultural law in the United States: education, organization and practice Arkansas Law Rev 43:503–522

Hamilton N (1993) Feeding our future: six philosophical issues shaping agricultural law Nebraska Law Rev 72(1):210–257

IDLO (2016) Women, food, land: exploring rule of law linkages using law to strengthen food security and land rights for women IDLO, Rome

Jacobi D, Andersen C (2016) Agriculture and the law: can the legal profession power the next green revolution? Drake J Agric Law 21(2):177–192

Jannarelli A (2003) Il diritto agrario tra agricoltura e alimentazione: dal linguaggio dei problemi ai problemi del linguaggio In: Rook Basile E, Germano` A (eds) Agricoltura e alimentazione tra diritto, comunicazione e mercato Giuffre`, Milano, pp 369–380

Manservisi S (1990) Seta, cotone, sughero e legno e l ’ Allegato II del Trattato CEE Rivista di Diritto Agrario 1:136–168

Massart A (1974) Contributo alla determinazione del concetto giuridico di «agricoltura» Rivista

di diritto agrario 3:312

Monteduro M (2015) From agroecology and law to agroecological law? Exploring integration between Scientia Ruris and Scientia Iuris In: Monteduro M et al (eds) Law and agroecology A transdisciplinary dialogue Springer, Heidelberg, pp 57–86

Monteduro M et al (2015) Law and agroecology A transdisciplinary dialogue Springer, Heidelberg

OECD (2001) Multifunctionality Towards an analytical framework OECD Publishing, Paris Raisz A, Szila´gyi JE (2012) Development of agricultural law and related fields (environmental law, water law, social law, tax law) in the EU, in countries and in the WTO J Agric Environ Law 7(12):107–148

Rodgers C (2016) Agricultural law Bloomsbury Publishing, West Sussex

Russo L (2012) Agricultural law and food law In: Costato L, Albisinni F (eds) European food law Cedam, Padova, pp 141–159

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Schneider S (2009) What is agricultural law? Agricultural law update http://ssrn.com/ abstract ¼1331422 Accessed 20 Oct 2016

Schneider S (2010) A reconsideration of agricultural law: a call for the law of food, farming, and sustainability William Mary Environ LawPolicy Rev 34(3):935–963

Smith F (2009) Agriculture and the WTO Towards a new theory of international agricultural trade regulation Edward Elgar, Celtenham

Szila´gyi JE (2009) The dogmatics of agricultural law in Hungary from an aspect of EC law Eur Integr Studi (University of Miskolc) 7(1):41–55

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A, San Jose

Environmental Protection and Food Security at the Cross-Roads with

Agricultural Law

Environmental Sustainability and Food

Security: How to Frame the Legal Intervention

Elisa Morgera and Andrea Saba

environ-In this connection, it seems timely to reflect on the role of the Convention onBiological Diversity (CBD)2 and of the guidance adopted by its 196 Parties inDecember 2016 on mainstreaming biodiversity in the agricultural sector3in order toinspire further legal research in this area The CBD guidance calls for promotingand supporting sustainable agricultural production through the enhanced use of a

1 This section is written by Elisa Morgera.

2 Convention on Biological Diversity (CBD) 1992, 1760 UNTS 79.

3 CBD Decision XIII/3 (2016).

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diverse range of well-adapted crops and livestock, and their varieties and breeds,and of associated biodiversity in agricultural systems, including pest-control organ-isms and soil organisms that promote nutrient cycling, thereby reducing orreplacing the need for chemical inputs It further recommends promoting andsupporting the development, transfer and use of technological innovation to helpreduce the negative impacts of agriculture and the integrated, efficient and sustain-able management of energy, water and soil resources It also encourages reducingloss and waste at all stages of production and consumption in the food system,including reducing post-harvest losses, maintaining genetic diversity of resourcesfor food and agriculture and their landraces and wild relatives, as well as supportingthe conservation and sustainable use of pollinators,4including through pesticiderisk reduction strategies and risk assessment procedures for pesticides and livingmodified organisms The recent CBD guidance therefore provides a wide-rangingset of standards against which to assess the comprehensiveness and ambition ofregional and national legal frameworks for sustainable agriculture.

Furthermore, the CBD guidance on mainstreaming biodiversity in the tural sector is noteworthy from a human rights perspective, even if it shies awayfrom adopting explicit human rights language It makes reference to the promotion

agricul-of an‘equitable and participatory approach to the management and restoration ofcritical ecosystems’ and the recognition of traditional knowledge and cosmovisions

of indigenous peoples and local communities It also points to the development oflegal frameworks or administrative measures for land use to enhance the conser-vation and sustainable use of biodiversity while recognising the rights of indigenouspeoples and local communities to lands and resources It further calls forrecognising the contributions of the collective actions by indigenous peoples andlocal communities to biodiversity conservation and sustainable use in the agricul-tural sector, promoting community and family farming by indigenous peoples andlocal communities, and protecting their traditional and established land rights andtenure The guidance also indicates the need for prior informed consent and fair andequitable benefit sharing in relation to the use of the traditional knowledge ofindigenous peoples and local communities for the sustainability of agriculture, aswell as their participation in land-use planning and zoning.5Another recent deci-sion adopted by the CBD Parties complements these recommendations, calling fordeveloping incentives for farmers, indigenous peoples and local communities toprotect pollinators and pollinator habitats, for example through benefit-sharingschemes, including payments for pollinator services schemes, as well as removing

or reducing perverse incentives causing the destruction of pollinator habitats, theoveruse of pesticides and the simplification of agricultural landscapes and produc-tion systems.6

4 CBD Decision XIII/15 (2016).

5 CBD Decision XIII/3 (2016).

6 CBD Decision XIII/15 (2016).

As recommended in the 2030 Agenda on Sustainable Development,7CBD Partieshave reflected‘different approaches, visions, models and tools’ to biodiversity con-servation and sustainable use in their recommendations on mainstreaming biodiver-sity in the agricultural sector These models include both market-based approaches(notably, certification and natural capital accounting) and non-market-basedapproaches (inspired by a vision of living in harmony with nature and reliance ontraditional knowledge) It is with particular regard to the latter that more legal research

is needed First of all, to what extent is the CBD guidance concerning indigenouspeoples and local communities applicable to farmers in the European continent? Andsecond, how can the law effectively support a respectful and constructive dialoguethat leaves room for non-mainstream views of nature and sustainable developmentand supports the integration of‘modern’ science and traditional knowledge?8

The goal of pursuing sustainable agriculture has informed the EU Common cultural Policy with the aim of supporting long-term productivity, as well as foodsecurity, as Alicia Epstein explores in her paper ‘The Ecological and PerpetualDimensions of European Food Security: The Case for Sustainable Agriculture’ Inparticular, her contribution assesses EU agri-environmental measures against theparadigm of sustainable development, thus investigating the extent to whichresulting policies are able to address the multifaceted challenges posed by foodsecurity The author argues that sustainable agriculture needs to bere-conceptualised through a rediscovery and prioritisation of an ecological andperpetual dimension of food security under the EU Common Agricultural Policy.Within the perspective of sustainable agriculture, ensuring access to plant geneticresources for food and agriculture plays a key role in tackling food security, climatechange and biodiversity In her paper on ‘International Law on Plant GeneticResources for Food and Agriculture: Towards a New Balance?’ Anna Micaraexplores the provisions in bilateral and regional trade agreements concerning intel-lectual property rights and genetic resource protection with the aim of evaluating theextent to which such provisions may detrimentally impact access to plant geneticresources In this line, the legal framework emerging from bilateral and regional tradeagreements is assessed against other international instruments; in particular, the authorfocuses on the potential impact of the draft UN Declaration on the rights of peasantsand other people working in rural areas Such Declaration may, if adopted, provide asignificant contribution towards a more balanced system, thus strengthening thehuman rights nature of the right to seeds and to biological diversity for peasants

Agri-7 Transforming our world: the 2030 Agenda for Sustainable Development (UN Doc A/RES/70/1,

25 September 2015).

8 See Morgera ( 2015 ).

9 This section is written by Andrea Saba.

The role of law in supporting sustainable agricultural production, as well asenvironmental sustainability, is further analysed in the paper by Andrea Saba,entitled‘Results-based Agri-environmental Schemes for Delivery Ecosystem Ser-vices in the EU: Established Issues and Emerging Trends’ The paper draws ourattention to the emerging implementation of results-based schemes to protect andenhance the delivery of ecosystem services from agricultural land In such schemes,farmers are rewarded not for performing activity-based standards but for achievingset environmental outcomes However, a results-based approach has a range ofcharacteristics that may complicate the legal intervention In this connection,Andrea Saba attempts to provide a legal understanding of such schemes as amechanism for promoting ecosystem benefits in Europe, thus contributing to thelong-lasting debate on the complex linkage between agriculture and environment.Agricultural ecosystems are both providers and beneficiaries of ecosystemservices.10The production of ecosystem services from an agricultural law perspec-tive was recognised through the widely debated concept of multifunctional agri-culture.11Such an acknowledgment is finally analysed within the specific case ofSwitzerland in the paper of Christa Preisig, entitled ‘The Legal Instruments forAgri-environmental Goals and the Influence of International Factors: The Case ofSwiss Agricultural Policy’ Over the past two decades, Switzerland has beenaddressing the key challenge of finding a balance between the interest of farmerstoward an increased agricultural production and a general interest in enhancingenvironmental sustainability Such an effort has been particularly reflected in theamendment of the Swiss constitutional provisions on agriculture, in order to allowlawmakers to implement a range of economic support measures for ecologicaltargets Against this background, international law has played a relevant role Theauthor explores the extent to which international factors are influencing Swiss agri-environmental targets.

References

Buia G, Antonucci M (2015) The Rural Development Programme (RDP) as a strategic tool for linking legal and agroecological perspectives In: Monteduro M et al (eds) Law and agroecol- ogy A transdisciplinary dialogue Springer, Berlin/Heidelberg, pp 151–182

Cardwell M (2004) The European model of agriculture Oxford University Press, Oxford Morgera E (2015) Fair and equitable benefit-sharing at the crossroads of the human right to science and international biodiversity law Laws 4:803–831

Power AG (2010) Ecosystem services and agriculture: tradeoffs and synergies Philos Transac R Soc B 365:2959–2971 http://rstb.royalsocietypublishing.org/content/royptb/365/1554/2959 full.pdf Accessed 5 July 2016

10 See, among others, Power ( 2010 ).

11 See, among others, Cardwell ( 2004 ) and Buia and Antonucci ( 2015 ).

of European Food Security: The Case

for Sustainable Agriculture

Alicia Epstein

It appears likely that the world will continue to experience a convergence ofmultiple biophysical, biochemical and societal changes that have the potential toimpact greatly on food security in the future.1For instance, the global population isexpected to swell by almost one-third by 2050,2 and combined with overallincreases in wealth (especially in developing countries), some have estimated thatthe actual demand for food could increase by up to 100% before the end of thecentury.3 However, the ability to meet this growing demand under the currenttrajectory will be severely limited by a number of factors, including potentiallyirreversible climate change,4loss of biodiversity5and the lack of available landsuitable for agricultural expansion,6 to name a few Moreover, the situation isfurther compounded by the sheer environmental impact of modern agriculture,which has the potential to further exacerbate climate change7 and has indeedalready been responsible for a considerable share of the biodiversity loss that hasoccurred during the past century.8In other words, the externalities of agriculture are

no longer limited to bringing about societal instability and collapse, as was the case

5 European Environmental Agency ( 2015 ), p 2.

6 The Royal Society ( 2009 ).

7 International Panel on Climate Change ( 2014 ), p 40.

8 European Environmental Agency ( 2015 ), p 2.

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in pre-industrial times Rather, recent studies indicate that there is ample reason tobelieve that the pervasive effects of‘conventional’ agriculture have been extended

to include the disruption of the very planetary systems and processes that haveenabled agriculture to flourish through the ages.9

There has, then, perhaps never been more pressing reason to ensure the ability of agricultural systems and to consider the role of farming in preserving theecological resource base that current and future generations depend on for foodsecurity.10In the European context, the need to pursue sustainable agriculture wasdefinitively acknowledged in the Community’s fifth environmental actionprogramme (EAP), which stressed that the Common Agricultural Policy (CAP)should strike a more sustainable balance between agricultural activity and thenatural resources of the environment.11More importantly, the EPA also provided

sustain-a fundsustain-amentsustain-al endorsement of the sustsustain-ainsustain-able development psustain-arsustain-adigm, which hsustain-asbeen central in defining the environmental scope of CAP objectives and legalinstrument ever since.12

Yet more than two decades after the adoption of sustainable development as theguiding growth paradigm, the ecological effects of agriculture remain significant,while reductions of its externalities continue to be incrementally integrated andpursued by the EU.13 In other words, although certain improvements have beenmade by successively‘greening’ the CAP through the process of environmentalpolicy integration (EPI), many aspects of European agriculture continue to displayunsustainable outcomes given their negative effects on the ecological systems,services and processes that enable food cultivation and production.14

Against this background, the present paper explores the objective of sustainableagriculture under the CAP and its crucial role for ensuring long-term food securityfor the benefit of a growing global population In doing so, it seeks to add to thecurrent debate by critically assessing the impact of the sustainable developmentparadigm upon the framing of the agri-environmental measures that have so farbeen pursued to this end and the extent to which this framework can be expected toprovide meaningful solutions to the mounting challenges to future food security.The relevance of this discussion has recently been carried forward in the context ofthe 2013 CAP reforms, which delivered the latest in a long line of measures aimed

at greening the policy and reducing the negative externalities of European ture These were explicitly introduced to give expression to the underlying principle

agricul-of sustainable development, but important questions remain as to their ability to

9 Rockstr €om et al ( 2009 ).

10 Foley ( 2011 ), p 62.

11 European Community ( 1993 ), p 37.

12 European Commission ( 1999 ), p 6.

13 European Environmental Agency ( 2015 ), p 2.

14 For instance, with regard to the integration of water policy concerns See European Court of Auditors ( 2014 ).

provide ecologically meaningful and sustainable solutions to the aforementionedchallenges.

The first part considers recent approaches to food security and the extensiveimpact that these have had on the formulation of contemporary agricultural poli-cies In particular, it highlights that recognised definitions of food security haveoverwhelmingly focused on supply and pricing policies as fundamental pillars ofnational and international approaches to food security In the European context, thishas especially induced production and land management practices that have hadextensive ecological implications The second part will, therefore, consider how theCAP objective of sustainable agriculture has been formulated in response to theseexternalities In particular, it looks at how the sustainable development paradigmhas impacted upon the policy formulation of sustainable agriculture and considerssome of the main CAP instruments that have been adopted in pursuit of thisobjective The third—and final—part explores the need to reconceptualise themeaning of sustainable agriculture and argues for the importance of rediscoveringand prioritising the ecological and perpetual dimensions of food security underthe CAP

The following subsections consider some of the overarching developments thathave influenced policy approaches to food security in recent decades before explor-ing the particular framework of the CAP and the ecological impacts of policies pastand present The aim is to provide an initial layer of discussion concerning theconceptual and legal frameworks that have defined food security as the primaryobjective of European agricultural policy

2.1 International Definitions

From a legal perspective, a precise meaning of food security is not entirelystraightforward to discern In the European context, for instance, the treaties donot provide a definition of this central policy objective, and it is instead necessary tolook to multidisciplinary literature, as well as international agreements and policydocuments to aggregate an initial definition of the concept However, approaches tofood security have varied considerably over the years, and it should be noted fromthe outset that there exists no universally accepted definition of the concept.15

15 Sage ( 2002 ), pp 128–129.

Although the first concerted efforts to deal with food security took place in the1930s under the auspices of the League of Nations,16 it was not until the 1974World Food Conference that the United Nations (UN) attempted to provide aninternationally endorsed definition of the concept At that time, the global foodsystem was experiencing its worse crises since the end of the Second World War,after decades of relative market stability and growth.17 A number of convergingevents, including market volatility, low crop yields and famine in some parts of theworld, were credited with creating this instability18and, importantly, also served tohighlight the effects that disruptions on the global level could have on food security

on the regional, national and local levels and vice versa.19In response, the WorldFood Conference delivered the first major international definition of the concept,according to which food security entailed‘The availability at all times of adequateworld food supplies of basic foodstuff to sustain a steady expansion of foodconsumption and to offset fluctuations in production and prices’.20Importantly,this definition placed considerable weight on the supply of food, as well as the need

to ensure the stability of food prices for the purpose of expanding food tion Consequently, Mechlem has argued that ‘the focus of the debate was onstrengthening food production to increase availability and stability of world foodsupplies of basic foodstuffs to meet increasing demands’.21 However, thisenunciation failed to include a number of crucial dimensions to food security,such as the role of food safety and issues of access.22 And, it follows, thatsubsequent definitions have attempted to incorporate these aspects, to one extent

consump-or another.23For instance, the Food and Agricultural Organization (FAO) expandedits own definition of food security in 1983 to reflect this shortcoming by adding thatfood security included‘Ensuring that all people at all times have both physical andeconomic access to the basic food that they need’.24

Likewise, the importance ofindividual and household access was subsequently reflected in the 1996 UN WorldFood Summit, which adopted a considerably more complex definition than thatexpounded upon in 1974 and remains one of the most oft-cited definitions to date.According to this,‘Food security is when all people have physical and economicaccess to sufficient, safe and nutritious food to meet their dietary needs and food

16 See for instance League of Nations ( 1973 ).

23 Clay ( 2002 ), p 2; Maxwell ( 1996 ), pp 169–170.

24 It added that food security included ‘Ensuring that all people at all times have both physical and economic access to the basic food that they need ’; see Food and Agricultural Organisation ( 1983 ).

preferences for an active and healthy life’.25 Definitely, the 1996 Declarationexpanded the definition of food security to include the important dimensions ofaccess to food and food safety.26For instance, it underscored that‘constraints on incomes to purchase food prevent basic food needs from being fulfilled’.27Thisincreased focus on micro-level aspects of food security has also been particularlyinstrumental in understanding the key role of individual and householdaccess andentitlement to food.28 Thus, it should be noted from the outset that although thefocus here is on the production-related aspects of agriculture under the CAP, thelatter merely represents one part (albeit a major one) of the food security matrix,whereas food security on the individual level depends on additional factors that arebeyond the scope of the present discussion Notwithstanding the increased attention

to these dimensions of food security, however, international approaches and nitions have continued to hinge strongly on maintaining adequate food supplies, aswell as ensuring that these be subject to pricing policies that make them accessibleand affordable.29In the European context, this has largely been pursued through acomplex combination of subsidies and other market measures, which have had aconsiderable impact on production and management practices in EU Member States(MS) The remainder of this section explores some of the outcomes that haveresulted from such policy mechanisms under the CAP

Food security has, in one way or another, been at the heart of the CAP since it wasfirst introduced in 1962 Indeed, in the aftermath of the Second World War, theCAP was instrumental in bringing about a turnaround of European agriculture, frombeing supplemented by food aid to self-sufficiency in a range of staple products.30Thus, much like the international definitions and approaches described above, foodsecurity has widely been perceived to depend on significantly increasing agricul-tural output and the formulation of market measures aimed at guaranteeing theincome of farmers, as well as ensuring affordable prices for consumers In short, theunderstanding was that food security could be ensured within (what was then) thecommon market of the European Economic Community (EEC), by maintaininghigh levels of productivity

25 Food and Agricultural Organisation ( 1996 ), at 1.

26 Zhang ( 2004 ), p 266.

27 Food and Agricultural Organisation ( 1996 ), at 1.

28 One of the most oft cited pieces of work in this field is Sen ( 1981 ) However, the link between food security and individual access has long been stressed by other economists within context of nutrition See for instance Joy ( 1973 ) and Levinson ( 1974 ).

29 Food and Agricultural Organisation ( 2002 ), at 1.

30 Shaw ( 2007 ), p 13.

This narrow focus on supply and pricing can be gleaned from the treaty chapter

on agriculture, which has remained largely unchanged since it was first introduced

by the 1957 Treaty of Rome In particular, Article 39(1) EEC (now Article 39(1) TFEU) specified that the objectives of the agricultural policy was

(a) to increase agricultural productivity by promoting technical progress and byensuring the rational development of agricultural production and the optimumutilisation of the factors of production, in particular labour;

(b) thus to ensure a fair standard of living for the agricultural community, inparticular by increasing the individual earnings of persons engaged inagriculture;

(c) to stabilise markets;

(d) to assure the availability of supplies;

(e) to ensure that supplies reach consumers at reasonable prices.31

One of the main effects of the early CAP was its propensity to encourageproduction, by means of guaranteed farm incomes and market measures.32 Thus,together with technological advancements and extensive funding, this paved theway for increased intensification and specialisation of agricultural production Bythe mid 1980s, the strong financial incentive to produce had resulted in vastsurpluses for a number of agricultural commodities For instance, outputs of beef,veal, pig meat, cereals, sugar, wine, eggs and poultry were all estimated to bebeyond the level required for self-sufficiency within the Community.33Moreover,

at this point, the CAP budget had reached an all-time high by accounting for almost70% of EC expenditure.34 The effect, according to Kay, was that‘price supportdrove up production, which drove up surpluses, which drove up the budget costs’.35This has consequently prompted some to argue that due to the seemingly economicillogic of the CAP, its main purpose could not possibly have been to ensure foodsecurity but must instead have been to secure the income of the farmingcommunity.36

In addition to the various socio-economic effects and costs, this oriented approach to food security also entailed unprecedented environmentalimplications.37The historical effects of agricultural intensification have been bothcomplex and diverse, with the obvious implication that it is impossible to provide acomprehensive account of its impacts within the scope of the present discussion.Notwithstanding this limitation, however, it is necessary to consider some of theseoutcomes for the purpose of the current discussion In particular, the intention is to

highlight how previous approaches to food security have secured abundant foodsupplies at the partial expense of the very resources that enable long-term foodsecurity.

Security

As pointed out in the Community’s very first Environmental Action Programme(EAP), an initial source of environmental concern related to the polluting effects ofinputs such as insecticides, herbicides and fertilisers.38Indeed, the unprecedentedincreases in agricultural productivity that occurred since the middle of the twentiethcentury were extensively attributed to the use and development of these inputs Andestimates indicate that they continue to play a significant role in maintaining yieldlevels currently enjoyed.39 In addition to high yields, however, they have obsti-nately been recognised for their contribution to the pollution of natural waterwaysthrough eutrophication,40as well as their risks to public health through the pollution

of groundwater, which remains an important source of drinking water within the

EU.41In particular, such pollution has been overwhelmingly associated with theexcessive use of nitrogen fertilisers, as well as the subsequent mismanagement ofwaste and slurry.42

Agricultural intensification has also been linked to increased soil degradationand erosion, largely as a result of overgrazing and other practices linked to livestockproduction.43Although the extent of soil degradation varies considerably betweenMSs, the Commission has highlighted that nearly half of European soils areestimated to‘face problems of soil quality, evidenced by low organic matter andnearly one quarter suffer from moderate to high erosion’.44 To put this intoperspective, the latter has described the process as one that takes ‘centuries tobuild up a mere centimetre of soil but, if mistreated, soil can be blown or washedaway in a few seasons’.45 Even though these risks have partly been addressedthrough current measures,46 it may be noted that the EU has yet to put in place

38 European Commission ( 1971 ), p 17.

39 Stewart et al ( 2005 ), p 1.

40 According to data produced by the European Commission some 33% of all monitoring stations

in the EU show signs of eutrophication See European Commission ( 2011a ).

41 Jack ( 2009 ), p 38.

42 European Environmental Agency ( 2000 ), p 21.

43 Ibid., at 39.

44 European Commission ( 2012 ), p 2.

45 European Commission ( 2011e ).

46 In particular under the cross-compliance regime that is discussed below.

specific legislation aimed at soil protection, which has attracted criticism fromorganisations such as the European Environmental Agency (EEA) in the past.47Perhaps the most extensive impacts of conventional agriculture have beenobserved with regard to the accelerated loss of biodiversity that has resulted fromland-use practices linked to intensification For instance, the removal of hedgerowsand drainage of species-rich wetlands have caused both the destruction and frag-mentation of wildlife habitats across Europe.48This has been particularly damaging

to species that depend on agricultural landscape features and the active ment of farmland for habitat and space For instance, wild and farmland birdpopulations continue to dwindle despite specific conservation legislation aimed ataddressing this decline and the introduction of specific agri-environmental mea-sures.49Likewise, a major concern in recent years has been the sharp declines inpollinating bee populations, which 80% of European crops have been estimated torely on for pollination.50Given the crucial role of biodiversity for maintaining theresilience and stability of agricultural systems, these and other losses are expected

manage-to pose particular threats manage-to future productivity and food security.51

Notwithstanding the importance of halting biodiversity loss, the EuropeanEnvironmental Agency’s (EEA’s) estimates that ‘only 17 percent of habitats and

11 percent of species of key ecosystems protected under EU legislation are in afavourable state’.52With regard to Natura 2000 sites (which covers over 10% of the

EU’s total agricultural area), in particular, the Commission has furthermore notedthat as much as 40–85% of habitats and 40–70% species of European interest have

an unfavourable conservation status.53On the political level, this decline has beenthe cause of widespread criticism as the EU had to concede that it failed to meet itsown biodiversity targets for 2010.54

In recent years, the impacts of climate change have also been subject toincreased attention given historic contributions that agriculture has made to theemissions of greenhouse gases (GHG).55Indeed, from the machinery to the devel-opment and use of pesticide and fertilisers, fossil fuels play a central role inmaintaining the high levels of outputs that Europe and the world have come toexpect.56However, some have argued that understanding of the link between howfood security has been pursued and its resulting effects upon climate change hasbeen unnecessarily delayed due to the imbalanced focus that the climate debate has

47 European Environmental Agency ( 2007 ), p 116.

53 European Commission ( 2011e ), p 4.

54 Birdlife ( 2011 ), p 2; Bradley et al ( 2012 ), p 60.

55 See for instance Cardwell ( 2011 ).

56 Fowler and Mooney ( 1990 ), pp 46–47.

tended to place on energy use and consumption.57The latter has arguably been thecase with regard to the effects of livestock production, which has been the mainsource of global nitrous oxide (N2O) and methane (CH4) emissions, carrying withthem warming potentials that far outweigh that of carbon dioxide (CO2).58How-ever, it should be noted that livestock production and changes in land use (oftenlinked to intensification) have also contributed to significant releases of CO2 by, forinstance, reducing the levels of carbon sequestrated in agricultural soils.59 As isfurther explored below, the effects of climate change on agriculture are expected to

be pervasive and include projections of reduced yields and productivity in regionssubject to changes such as heat waves, flooding, and droughts This is undoubtedlyexpected to pose unprecedented challenges to food security as long-since acknowl-edged by the EU.60

As the effects of intensive production have become increasingly recognised, sotoo has the need to move towards more ecologically orientated forms of agriculture,with the aim of securing long-term food security In response, the sustainablemanagement of natural resources has been formulated as a central CAP objectiveaimed at addressing the environmental externalities of land management practicesfunded under the CAP.61The following sections examine the main legal measuresthat have been pursued to this end and critically assess the extent to which they havebeen shaped and informed by the underlying principle of sustainable development

Just Another Brick in the Wall

Over the course of several decades, sustainable development goals have permeatedmost, if not all, fields of EU policymaking, and the CAP has been no exception.62

As already noted, the objective of sustainable agriculture is often traced back to thefifth EAP, which attempted to lay down a road map towards more ‘sustainable’development and singled out agriculture as a main source of environmental

61 European Commission ( 2010a , b ).

62 For and overview of local and regional sustainable development plans, see Research Institute for Managing Sustainability ( 2009 ).

degradation and one of the sectors most in need of reform.63 In practical terms,these changes have largely taken place through EPI, which requires that environ-mental protection be integrated ‘into the definition and implementation of theUnion policies and activities, in particular with a view to promoting sustainabledevelopment’.64 Thus, the EU’s first major sustainable development strategystressed that the environmental integration plans of the various sectoral policies(including the CAP) ‘should be consistent with the specific objectives of EUsustainable development strategy’.65

It follows that the CAP, being one of the EU’s most important and long-standingflagship policies, has slowly come under pressure to contribute towards the goal ofsustainable development by addressing the negative environmental costs of pro-duction agriculture A key policy response to this imperative has been through theformulation of sustainable agriculture as the main CAP objective tasked withcreating ‘the desired relationship between agriculture and the environment’.66Importantly, the Commission has clearly accentuated that the underlying notion

of‘sustainability’ in this context is directly linked to that of sustainable ment.67 The objective of sustainable agriculture under the CAP framework hasconsequently been described as preserving‘the overall balance and value of thenatural capital stock and a redefinition of short, medium and long-term consider-ations to reflect real socio-economic costs and benefits of consumption andconservation’.68

develop-The latter is reflective of the core dimensions of the principle of sustainabledevelopment ‘based on balanced economic growth and price stability, a highlycompetitive social market economy, aiming at full employment and social progress,and a high level of protection and improvement of the quality of the environ-ment’.69

Importantly, this restatement also points to one of the staple features of thepost-modern concept, namely the notion that the social, economic and environ-mental challenges of contemporary society may be balanced to create‘sustainable’outcomes and continued growth-based development.70 Thus, one of the centralquestions surrounding the three-part concept has been how to actually carry out thisbalancing act in environmentally meaningful ways In legal terms, such concernshave partially been addressed at EU level by environmental legislation, recognition

of the polluter pays principle, as well as the principles of prevention, precaution andintergenerational equity However, Avile´s has pointed out that these principles havebeen of limited use in striking such balances due, in part, to their inherent contra-dictions and uncertainty as to which considerations that should bear the greatestweight.71Furthermore, important legal and conceptual questions remain as to whatconstitutes a ‘high level’ of environmental protection, the circumstances underwhich environmental concerns ought to outweigh economic and social ones andhow these should be measured and prioritised.

There are few EU policy areas in which these three elements of sustainabledevelopment appear to be in such potential conflict as under the CAP For instance,

as already seen, Article 39(1) TFEU tasks the EU institutions with realising thesocio-economic objectives of the CAP, including increasing agricultural produc-tivity, stabilising markets and ensuring that products reach consumers at reasonableprices while also providing a fair standard of living for the farming community.However, the provision makes no mention of environmental aims or considerations,with the effect that the fundamental treaty objectives of the CAP remain highlycommitted to the economic and social aspects of EU agricultural policy.72Againstthis background, the following sections explore the extent to which the process ofgreening has served to counterbalance this underlying bias and whether the influ-ence of the sustainable development paradigm has brought the objective of sustain-able agriculture closer within reach

Although it is beyond the scope of the current discussion to provide a full account ofthe many agri-environmental measures that have been introduced with an aim ofgreening the CAP, a few landmark changes deserve brief attention Indeed, sincethe first major policy reform in 1992, the CAP has undergone a number of structuralchanges that have impacted upon the land management and production practices ofEuropean farmers.73Two particularly important steps in this evolution has been thegradual move from product support (mentioned above) to producer support, as well

as the creation of a two-pillar policy framework: with Pillar I being devoted todirect payments and Pillar II to rural development.74Together with a number ofother structural policy changes, these have provided the EU with novel opportuni-ties to pursue the objective of sustainable agriculture by successively integratingagri-environmental policy measures under the CAP

71 Avile´s ( 2012 ), p 30 See also Gillroy ( 2006 ), p 2.

72 See Article 39 TFEU.

73 For a detailed overview, see Jack ( 2009 ).

74 For an overview of these developments, see Matthews ( 2011 ).

With regard to Pillar II, this process began with the Agenda 2000 reforms andRegulation 1257/99, which required all MSs to include agri-environmental schemes

in their rural development programs (RDP).75The subsequent division of Pillar IImeasures into four so-called axes, under the Mid-Term Review, also added furtherweight to the environmental dimension of rural development policy by devoting thesecond of these axes to ‘improving the environment and the countryside’.76 Inparticular, Regulation 1698/2005 envisaged that ‘agri-environmental paymentsshould continue to play a prominent role in supporting the sustainable development

of rural areas and in responding to society’s increasing demand for environmentalservices’.77

Moreover, Article 36 of the regulation specified that measures fundedunder the environmental axis (Axis II) included those‘targeting the sustainable use

of agricultural land’ by means of a number of listed payments.78

However, although the intention of these payments was essentially to induceland management practices capable of providing tangible environmental goods andbenefits, it is important to note that Pillar II measures have always depended on thevoluntary uptake of farmers In other words, even though MSs are obliged to devote

a certain level of resources towards formulating agri-environmental schemes andobjectives as part of their RDPs, the choice of enrolment and participation remainsfirmly with the individual farmer Furthermore, it might be added that the fundingarrangements for Pillar II measures only provide for partial funding from the EUbudget, with MSs having to draw the balance from their national funds.79It followsthat the willingness of farmers to enrol as well as of MSs to commit to developingmeaningful and properly targeted agri-environmental measures has varied widelyacross the EU.80

On the other hand, a different approach has been taken with regard to theintroduction of greening measures under Pillar I In particular, the development

of the direct payments regime and the successive shift from price support toproducer support‘provided an important opportunity to ensure that farmers fulfilled

75 Council Regulation (EC) 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain Regulations, OJ [1999] L160/80, Article 43(2).

76 Council Regulation (EC) 1698/2005 of 20 September 2005 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) (the 2005 Rural Development Regulation) OJ [2005] L277/1, (Axis II).

77 Ibid., Preamble at 35.

78 Ibid., Article 36.

79 Regulation (EU) 1305/2013 of the European Parliament and of the Council of 17 December

2013 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) and repealing Council Regulation (EC) No 1698/2005, OJ [2013] L347/487, Articles 58–63.

80 Matthews ( 2013 ), pp 13–14.

more specific environmental obligations’.81The most decisive move in this tion has, arguably, been through the introduction of cross-compliance in 2005,which was intended to‘contribute to environmental improvement and sustainabledevelopment in agriculture’.82Regulation 1782/2003 was, thus, the first to imposebaseline environmental conditions that farmers were required to observe in order toreceive direct payments.83

direc-The regulation divided these obligations into two distinct groups: statutorymanagement requirements (SMR)84 and requirements to keep land in good agri-cultural and environmental condition (GEAC).85 With regard to SMRs, thesecovered management requirements concerning the environment; public, animaland plant health; and animal welfare.86In particular, Annex III of the regulationlisted a number of EU directives under each of these headings, which requiredspecific (i.e., cross-)compliance in exchange for direct payments The environmen-tal SMRs related to long-standing corner pieces of EU environmental legislation,such as the Wild Birds Directive,87 the Groundwater Directive,88 the SewageSludge Directive,89 the Nitrates Directive90 and the Habitats Directive.91 As isalways the case with EU directives, however, horizontal enforceability of these actsdepended on MSs to translate their objectives into concrete national rules.92Likewise, MSs were responsible for operationalising the requirements andstandards for GEACs, set out in Annex IV of Regulation 1782/2003.93The annexlisted four thematic issues for which specific minimum standards had to be set byMSs (either on a national or regional basis), taking ‘into account the specific

81 Jack ( 2009 ), p 66 See also Regulation 1782/2003 of 29 September 2003 Establishing Common Rules for Direct Payment Schemes under the Common Agricultural Policy OJ [2003] L270/1, Preamble at 24.

82 European Commission ( 1999 ) at 21 Likewise the ECA had previously encouraged attaching conditions to the receipt of direct payments See European Court of Auditors ( 2000 ).

83 Regulation 1782/2003 of 29 September 2003 Establishing Common Rules for Direct Payment Schemes under the Common Agricultural Policy, OJ [2003] L270/1.

characteristics of the areas concerned, including soil and climatic condition,existing farming systems, land use, crop rotation, farming practices, and farmstructures’.94 Specifically, these included setting minimum standards aimed ataddressing the issues of soil erosion, soil organic matter, soil structure and aminimum level of maintenance.95

Certainly, the introduction of cross-compliance constituted the principal ment for integrating environmental protection considerations within Pillar I prior tothe 2013 reforms.96 Moreover, the framework for both SMRs and GEACs wasfurther streamlined and revised following the CAP‘Health Check’ in 2009.97Andadditional changes, such as an increased focus on climate change measures, werealso adopted in the context of the 2013 reforms Thus, it appears that cross-compliance will continue to be an important aspect of the direct payments regimeand the CAP’s overall contribution towards attaining improved levels of environ-mental protection and sustainable agriculture

instru-However, neither the introduction nor the fortification of the cross-complianceregime has come without considerable criticism pertaining to its perceived lack ofambition and limited environmental outcomes With regard to the former, forinstance, it has already been seen that the SMRs were based on pre-existinglegislation, which essentially meant that a sizable part of the Commission’s effort

to‘green’ the CAP rested on compensating farmers to follow the law This not onlyappeared illogical from an economic perspective,98but there were also concernsthat it could conflict with the polluter pays principle, which clearly requires theproducer to bear the costs of operating in compliance with basic legal obligations.99Moreover, some of the directives had, technically, required implementation to becompleted – and the relevant obligations imposed upon farmers—years before theintroduction of cross-compliance.100

A particularly challenging aspect of cross-compliance has been how to ically evaluate the outcomes of these policy measures For instance, scathingcriticism came from the European Court of Auditors (ECA) in 2008, which stressedthat the achievements of cross-compliance were incapable of being preciselymonitored due to the absence of reliable and comprehensive ‘objectives,

empir-94 Article 5(1).

95 Annex IV.

96 See for instance Institute for European Environmental Policy ( 2006 ).

97 Council Regulation (EC) 73/2009 of 19 January 2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, OJ [2009] L30/16, Annex III.

98 European Court of Auditors ( 2008 ), para 13 Importantly, however, the GEAC standards imposed obligations beyond the legal baseline to some extent.

99 For a comprehensive discussion of the matters involved, see Cardwell ( 2006 ).

100 Thus, S €oderberg has described the SMRs as a tool for speeding up compliance by MSs with transposition of the various environmental directives See S €oderberg ( 2011 ).