The IBA’s response to the war in Ukraine
On the breadline
The Ukraine–Russia war has exacerbated problems with food security as both sides are major contributors to global supply lines. Global Insight assesses whether we’re living in a food crisis and, if so, what can be done.
When they talk about ‘black gold’ in Ukraine, they’re not talking about oil but chernozem, a fertile soil, which is darkened by its rich mix of decomposed plants that are in abundance in the country. It’s thanks to chernozem that Ukraine, with its 600,000 square kilometres of territory, is the world’s leading producer of sunflower oil and produces nine per cent of the world’s wheat, alongside barley, oats and other grains.
The war in Ukraine has led to fears, however, that enough crops can even be harvested. It’s having a devastating impact on logistics and the distribution routes for these grains that are vital to, for instance, Egypt and other parts of the Middle East, North Africa and Turkey.
We already produce enough food globally. The problem is that we lose it, we waste it and it doesn’t get to the people who need it
Environmental Regulation Campaigner, Friends of the Earth
Sanctions on Russia don’t help. Though wheat and fertiliser are expressly carved out of international bans, Russian energy is not. Hefty oil and gas prices are causing havoc. The countries that are suffering the worst effects, such as Yemen, are the least able to cope with any supply problems or price hikes.
The crisis arrives at a time when food supply lines were already upset by the pandemic. As the world emerged from lockdown, price hikes followed as demand surged, particularly for fertiliser, a fundamental input for food systems.
All of these factors have pushed food security to the top of the agenda. The Food and Agriculture Organization of the United Nations (FAO) projects that the Ukraine–Russia war could increase the number of people facing severe food shortages by between eight and 13 million.
By way of background
But this is not where the story begins or ends. Food security has, in fact, been on the agenda for some time. Even before the war, the FAO had forecast that for 2022 up to 181 million people in 41 countries could face a food crisis. As far back as 1996, a world summit on the issue was held in Rome.
If one disentangles the knot of what has been causing, and what will continue to cause, this food insecurity, one finds themes such as the effect of the climate crisis, water shortages – the current drought across the American Plains could lead to a 21 per cent fall in wheat production there – and changes in diet as economies consume more meat.
Dig a bit deeper and there’s more going on. The problem is not so much over food production per se, but on food distribution and access. As Kierra Box, an environmental regulation campaigner at Friends of the Earth, says: ‘We already produce enough food globally. The problem is that we lose it, we waste it – to the tune of around 40 per cent globally – and it doesn’t get to the people who need it.’ One scientific paper estimates that the amount of wheat wasted in the EU alone is approximately half the amount of Ukraine’s wheat exports.
Margret Vidar, a legal officer with the FAO, sums it up when she says that the organisation is ‘very concerned about Ukraine, and those affected by it, those whose supplies are blocked by conflict, and concerns for the next agricultural cycle’.
‘Our food systems were failing even before the war in Ukraine’, she adds. ‘We are, despite all the resources we have, all the technology we have developed, failing to feed everyone.’
To ensure people have access to safe and nutritious food, a number of different tools and strategies are needed, ranging from […] precision technologies, through to sustainable agriculture
Co-Chair, IBA Agricultural Law Section
Tackling food insecurity is like facing up to a hydra. The immediate problem caused by the war in Ukraine requires urgent action from the international community. At June’s G7 meeting held in Germany, a $4.5bn commitment to tackle food insecurity and set up an alliance with the World Bank to ‘coordinate’ short-term responses was agreed. And on 22 July, Ukraine and Russia agreed a deal to allow the resumption of grain exports through Ukraine’s Black Sea ports.
But in the medium and longer term, significant overhaul is also needed, argue experts – though there’s no consensus on what change looks like.
Lynn Bergeson, Co-Chair of the IBA Agricultural Law Section and Managing Partner of Bergeson & Campbell in Washington, DC, supports a ‘big tent’ approach. ‘To ensure people have access to safe and nutritious food, a number of different tools and strategies are needed, ranging from bio and synthetic biologies [and] precision technologies, through to sustainable agriculture, as well as also striving towards more equitable distribution and access.’
The law has its role to play here in changing behaviours and providing legal entry points to underpin and help enforce policy changes (see Box Out: Legislative pathways to food security).
‘Modern agriculture is not feeding everyone and is not protecting the environment’, says Vidar, voicing the concerns of many that current industrial agricultural practices are a significant contributor to the climate crisis and environmental degradation – with about a third of all greenhouse gas emissions coming from agriculture – as well as propping up inequalities in our food systems.
‘Farmers can’t make a living, rural lives are insecure, food doesn’t get where it is needed’, she says. ‘The system is in trouble.’
Yuri and Oleksiy, Ukrainian farmers wearing body armours and helmets, work at the topsoil in a field, amid Russia's invasion of Ukraine, in Zaporizhzhia region, Ukraine April 26, 2022. REUTERS/Ueslei Marcelino
Food systems would be better off if sustainability was one of the central planks of agriculture. ‘We feel sustainability is at the heart of change’, says Vidar. Of course, ‘sustainability’ has many facets, including techniques such as planting cover crops, reducing tillage and integrating livestock and arable farming, to more general themes such as lower use of pesticides and fertilisers and keeping farmers closer to their customers.
Sustainability is a useful baseline – and has been built into the UN’s Sustainable Development Goals. The time is ripe for change, says Vidar. ‘We see the tremendous opportunity for a new approach to agriculture, an ecological and sustainable approach. If there is a crisis with fertilisers, let’s use this as an opportunity to rethink their use.’
We see the tremendous opportunity for a new approach to agriculture, an ecological and sustainable approach
Legal officer, UN Food and Agriculture Organization
Enter the EU’s Farm to Fork strategy. Published in 2020, this is a hugely ambitious framework which aims to encourage a transition in the region towards environmentally sound food systems. These include systems that mitigate the climate crisis rather than contribute to it and which reverse the loss of biodiversity, while also delivering on ‘food security, nutrition and public health’.
Farm to Fork must contend with the Common Agricultural Policy (CAP), which governs the funding –one-third of the EU’s budget – and priorities of farmers and food production within EU Member States. Campaigners have criticised the European Commission for what they view as failures to ensure that the CAP aligns with the new sustainable agriculture aims set out in Farm to Fork.
Legislative pathways to food security
The law provides a number of legal entry points to bring about better food security. At its most fundamental, human rights law includes the right to adequate food and the right to a safe, clean, healthy and sustainable environment. There are constitutions around the world that also articulate these rights specifically, such as the Swiss Confederation’s constitution, which not only states that the agricultural sector should contribute to the reliable provision of foodstuffs but also ‘the conservation of natural resources and the upkeep of the countryside’.
There are framework laws that provide the architecture for sectors or countries to introduce laws. A good example might be a regional framework such as the one the EU is introducing to bring about its ambitious Green Deal policy, which was published in 2019. Then there are numerous national laws covering pretty much every aspect of food supply, from land use to soil, water, forests and livestock production, seed production and ownership.
These laws are constantly evolving. Some more recent rules focus on biodiversity and how to rebuild what has been lost. As part of the EU’s Green Deal, the European Commission has recently published an EU Nature Restoration Law, which sets targets to restore land that has seen degradation by, for instance, restoring agricultural ecosystems. There have been laws passed to encourage ‘agroecology’, where ecological principles are applied to food systems and practices and aim to improve the ecosystems surrounding agriculture.
Another route is to give legal rights to nature as the New Zealand parliament did in 2017 when it recognised the Whanganui River as a legal entity, meaning it could be represented in court and sue polluters, for instance.
The world is not short of laws that aim to protect and develop better food systems. Perhaps the harder task is enforcing them.
SOURCE: Transforming agri-food systems, Food and Agriculture Organization of the United Nations, 2021
Friends of the Earth claims, for instance, that there’s not enough in the recently negotiated CAP to support targets for greater organic farming, drastic reductions in the use of pesticides and fertilisers and a reduction in greenhouse gas emissions.
A legislative framework for the Farm to Fork strategy is currently being outlined but not due to be adopted until the end of next year. Beyond the EU, other countries are also beginning to shift their focus to sustainability but progress is piecemeal. ‘Everyone wants to see more sustainable agriculture. But doing so is not a quick fix. There is inertia in the system’, says Vidar.
The tractor and the tracked
Another theme relating to food security relates to harnessing new technologies that could enable farmers to, for instance, increase yields while saving on inputs such as water and pesticides, and therefore reduce costs. There are a range of technologies from robotics through to artificial intelligence to support such developments.
Golden sunflower plants at sunset in the countryside. AdobeStock/Vitalii.com
Perhaps some of the simplest and cheapest technologies are the digital tools that have entered the market. These tools allow farmers to be ‘smarter’ in farming by providing real-time information on all the variables that they must contend with: climate, soil condition, moisture and nitrogen levels. Precision farming, as it’s known, began with the use of satellites but now harnesses drones as well as sensors and software. For example, in relation to irrigation, there are precision products that have analogue sensors out in a field that measure temperature, moisture, humidity, pH levels and more, and feed the data to a digital programme. The software then talks to the irrigation system and it automatically adjusts the water supply to the field.
Digital programmes can crunch through huge amounts of data and turn it into information that can inform a farmer’s decisions not only on how much irrigation is needed, but how much fertiliser or pesticide too. The detail extends not only to specific fields but to particular areas of the fields, and even to particular plants. From a legal perspective, the significant amounts of data that precision farming generates – and how that data is protected and how we ensure its ownership is fair and equitable – is the next big challenge.
Linked to precision farming is the deployment of nanotechnology, which has been used to develop ‘nanopesticides’ and ‘nanofertilisers’. This nano material may be able to reduce the overall amount of chemicals deployed in farming compared with more conventional methods, resulting in a lower impact on soil health while still improving plant heath. Nano material can also be engineered so that it can withstand decay, meaning it lasts longer. One study found that nano products increase efficacy by more than 30 per cent and reduce toxicity by 40 per cent.
But these technologies are not without risk, and, as they are new, we don’t yet know what the medium- or longer-term harms may be. Could, for instance, nanopesticides actually be absorbed by organisms that aren’t pests, such as bees? As Bergeson says, ‘there needs to be a thorough risk-benefit analysis for all these developments’.
For many of these new technologies, however, assessing risk is a significant challenge because the science is fundamentally new. Rules and regulations were drafted when the world – and the tech – was in a very different place. Speaking on the US experience, Bergeson says that ‘at the time that our US laws were written, the “nano” scale was not even imagined and we had no language for that. This was a structural challenge for the regulators. They didn’t have the detection methodologies or governance approaches to deal with the nano scale, so they have been rewriting them.’
Letting ‘gene-editing’ out of the bottle
Perhaps the most controversial element of how to achieve food security is the development of genetically modified (GM) crops and synthetic biology. Proponents of GM argue it’s an effective way to feed our hungry and growing populations because it can increase yields and secure supply with crops that are better able to resist pests and the climatic changes we face.
Critics say it’s the wrong solution to the wrong problem. There are enough calories, they argue, and instead we need to fix inequalities and distribution, not make the situation worse with new crops that may carry risks we don’t fully understand.
The US is the global leader on GM, though economies such as Brazil and India are significant producers. Since the early 2000s, the EU has stood down from the development of GM crops by requiring them to go through rigorous scientific assessments under the aegis of the European Food Standards Agency. This has led to a de facto moratorium on GM crops in the region.
Developments in science in the 2010s have given rise to what’s known as ‘gene editing’. In this process, there’s a controlled change in a living organism’s existing DNA as opposed to the use of a foreign gene, which is what GM does. In 2018, however, the Court of Justice of the European Union (CJEU) closed the door on ‘gene editing’ in the EU in a judgment which held that it still involved a mutation in genetic material and so should fall under the same regime as genetic modification.
Following Brexit, the UK is currently intending to diverge from this position and has put forward a bill that would, in effect, reverse the CJEU decision (for England only) so that gene editing is specifically distinguished from GM. This would re-open the door to gene editing programmes in the jurisdiction.
Everything turns on the definition. Under this Genetic Technology (Precision Breeding) Bill, if a product falls within the meaning of gene editing (‘precision breeding’ is a type of gene editing), then it follows a fast-track process and the risk assessments involved are less onerous. The question for critics is whether the distinction is real.
Lawyers must play their part
Food security needs good lawyers as well as good laws. Lawyers have a dual professional and ethical responsibility ‘to avoid and address potential adverse impacts from their own conduct, or from the actions of their business clients’, says Valerie Johnston, a legal officer with the FAO. ‘Those who have business clients in agriculture need to make them aware of not only the financial risks of any matter or project but also the social and environmental risks, which can lead to financial and reputational costs.’
These types of social and environmental issues and related recommendations are set out in the UN Committee on Food Safety’s Principles for Responsible Investment in Agriculture and Food Systems.
Edie Hofmeister, Co-Chair of the IBA Business Human Rights Committee and a public company director, says that ‘Lawyers only enhance their value to their clients when they provide a human rights context for their legal advice. They are uniquely positioned to act as the IBA’s guide on business human rights instructs, and provide “wise counsel” to pre-empt potential legal and other risks.’
A spokesperson for the UK’s Department for the Environment, Food & Rural Affairs tells Global Insight that: ‘Precision breeding technologies can make targeted genetic changes to produce beneficial traits that can also occur through traditional breeding and natural processes. Precision breeding is, therefore, different to genetic modification where modern techniques are used to insert genes from an unrelated species into another species.’
Friends of the Earth and other campaigners strongly disagree. ‘The distinction is semantic and the risks could be just as great as with GM’, says Box. ‘The definition is meaningless especially without reference to the timescale over which organisms might evolve. The dinosaurs in Jurassic Park could have arisen through “traditional breeding and natural processes”. In effect, the Bill is saying that almost anything can be excluded from GM.’
It's worth noting that under the Bill there is still a regulatory process but it’s ‘simplified’, says Joel Smith, a partner at Hogan Lovells, who represents a number of agribusiness clients. ‘Our clients are broadly supportive [...] Advocates argue that this is still science-based regulation, and cite the evidence that suggests these techniques are low risk.’
There’s another angle to the GM debate and that’s about who it is that develops and owns the products. Vidar is concerned about ‘the way that GM crops lend themselves to monocultures and the overuse of chemicals. These are the consequences of developments that started with the so-called “green revolution”. Now we know that these two elements have hugely detrimental impacts, and we need to move onto a different type of agriculture.’
Similarly for Box, ‘GM is not a public good but a private one and so is synonymous with industrialised farms. It means that multinationals are the seed owners and corporations have the power. More of the same will just allow for further commercialisation and industrialisation rather than sustainability and biodiversity.’
Take pests: GM can manipulate the DNA to make seeds that are better able to resist them. Box argues that there are other ways, however. ‘Sustainable farming can do so much more, for instance, by reducing inputs, with crop rotation, with more natural methods’, she says. ‘It allows farmers to be independent and responsive to their local conditions. In contrast, GM or gene editing risks further embedding a system which is monocultural where farmers are in hoc to larger corporations. Let’s not further compound the problems we already have.’
From risk to regulation
With these new technologies and biotechnologies, there’s a fundamental place for regulation. Stakeholders have opposing concerns that either there’s not enough or too much regulation and it’s hard to strike the right balance. Good regulation, well-drafted, is exactly that sweet spot where risks versus rewards have been properly weighed up. It’s also a question of better enforcing and implementing the laws that are already in place (see Box Out: Legislative pathways to food security).
Vidar adds a note of caution to this, however, and discourages too draconian an approach to enforcement because ‘it builds resentment if farmers are not on the same page’. She points to incentives and the use of behavioural science alongside legal tools.
As there are currently few signs of peace in Kyiv, food security remains a considerable cause for concern. Beyond today, however, there are more fundamental problems with our food systems that need our attention to stop the breadline getting any longer.
Polly Botsford is a law and current affairs writer and can be contacted at email@example.com
Image credit: A fire from a gas processing plant continues to burn behind a field of wheat after the plant was hit by shelling a few days prior in Andriivka in the Kharkiv region as Russia's attack on Ukraine continues in Ukraine, June 21, 2022. REUTERS/Leah Millis