RIGHT TO FOOD: REPORT OF SECOND SESSION,

UNCLAS ROME 005747

SIPDIS


STATE FOR IO/EDA, L/HRR, E, EB/TPP/ATP
USAID FOR CUMMINGS
USDA/FAS FOR REICH AND HUGHES

FROM THE U.S. MISSION TO THE UN AGENCIES IN ROME

E.O. 12958: N/A
TAGS: AORC PHUM EAGR EAID EFIN KUNR FAO
SUBJECT: RIGHT TO FOOD: REPORT OF SECOND SESSION,
INTERGOVERNMENTAL WORKING GROUP ON VOLUNTARY GUIDELINES,
27-29 OCT 2003

REFS: (A) 03 ROME 4443, (B) 03 ROME 1380

This cable contains sensitive but unclassified sections
that are intended strictly for internal USG use.


1. (SBU) Summary: The second session of the
Intergovernmental Working Group (IGWG) for the
Elaboration of Voluntary Guidelines to Support the
Progressive Realization of the Right to Adequate Food in
the Context of National Food Security met in Rome October
27-29. Delegations gave their initial reactions to the
draft Voluntary Guidelines produced by the IGWG's Bureau.
(See Ref. A.) Comments and proposals raised by
delegations and NGO representatives during the meeting
indicated that, as more detailed, textual proposals are
placed on the table in an upcoming February 2-5, 2004,
negotiating round, the US delegation will confront
problematic proposals on issues ranging from the
characterization of an international right to "the
progressive realization of the right to adequate food" to
proposals from many developing countries and NGOs to use
this exercise to reshape current international trade,
finance, and development assistance regimes to expressly
take into account a right to food and food security. The
US delegation believes, and Mission concurs, that an EB
officer would be an important addition to the US
Delegation in the February round. End Summary.

--------------
BACKGROUND
--------------


2. (SBU) Operative paragraph 10 of the 2002 Declaration
of the World Food Summit: five years later invited the
FAO to establish an intergovernmental working group "to
elaborate, in a period of two years a set of voluntary
guidelines to support member states' efforts to achieve
the progressive realization of the right to adequate food
in the context of national food security." An
introductory IGWG session was convened in March 2003 (Ref
B). In the months following that session, a seven-member
Bureau (based on FAO regions) working with the FAO
Secretariat developed an opening text of the guidelines.

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(See Ref A and previous). In an attempt to exercise more
control over the text, the United States became the North
American member of the bureau.


3. (SBU) During the Bureau process over the summer of
2003, the United States identified a series of problems
with the FAO Secretariat's draft text and came to the
Bureau sessions with detailed and extensive proposals,
inter alia to: (1) delete or correct problematic
language that would mischaracterize the nature of a food-
related right under international law or imply US
concurrence with international obligations that it does
not accept; (2) resist language, in the international
arena, inconsistent with US policy in the area of the
provision of international food aid, embargoes, and other
international economic trade and monetary policies; and
(3) otherwise keep the negotiations focused on the
limitations of the IGWG's mandate by, inter alia,
deleting language that was not voluntary, that would
purport to apply to international armed conflict and
foreign occupation, or that attempted to instruct
international organizations (including the WTO and the
World Bank) on how they should conduct their operations.


4. (SBU) As noted in Ref. A, the USG was extremely
successful in correcting these problems in the
Secretariat's text at the final September 15-19 Bureau

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meeting. As described in the paragraphs below, a
significant element in the October IGWG was the desire
and intention expressed by many developing countries,
some developed countries (notably, Switzerland and
Norway),and NGO participants to reinsert all of these
problematic elements into the Voluntary Guidelines.

--------------
THE OCTOBER MEETING
--------------


5. (U) Representatives from 89 governments, the United
Nations and three UN specialized agencies, one
intergovernmental organization (the ICRC),and 23 NGOs
participated in the session. Ambassador Mohammad Saeid

Noori-Naeeni from Iran chaired the three-day meeting.
As the draft opening text of the Voluntary Guidelines had
only been circulated three weeks before the meeting,
delegations at the session were invited to give comments
and reactions to the text, without making specific
textual proposals.


6. (SBU) Status of the text. As noted above, prior to
the meeting, the Bureau held intensive discussions to
develop the opening text. As the final draft reflected
many compromises among the regional group bureau members,
it was agreed that all regions would support making the
Bureau text the basis for the IGWG negotiations.
Although this outcome ultimately prevailed, it became
clear from the opening interventions of many developing
countries (including Egypt, Venezuela, Syria, South
Africa, and Jamaica) that many delegations would attempt
to make extensive changes to that text.


7. (SBU) Opening Remarks. After a short introductory
greeting from Chairman Noori, the FAO, as host of the
session, was invited to give an opening statement of
welcome. Seizing the opportunity, Hartwig de Haen,
Assistant Director-General, Economic and Social
Department, expressly availed himself of the opportunity
to give what he described as the FAO's policy views on
how the Voluntary Guidelines should be drafted. In this,
he stated his opinion both that the IGWG should not take
a "least common denominator approach" and that the
Committee on Economic, Social and Cultural Rights' ("ESC
Committee") General Comment 12 should be considered to be
the authoritative interpretation of the right to adequate
food (a position expressly at odds with USG views).

--------------
SUBSTANTIVE REACTIONS TO THE INITIAL DRAFT
--------------


8. (U) As noted above, comments by delegations and NGOs
were kept at a fairly general level and textual proposals
to amend the draft were not offered. That said, it
became clear that many developing countries, some
developed countries (most notably Norway and
Switzerland),and the food NGOs attending the conference
will propose a series of changes to the text in the next
negotiating round.

Legal Issues
--------------


9. (SBU) Paragraph 2 of the Introduction currently
contains problematic language that appears to be an
attempt to describe the scope and content of the
progressive realization of a right to adequate food.
Although the United States delegation currently believes
the language goes beyond the current legal scope of the
Covenant on Economic Social and Cultural Rights, Norway,
Jamaica, Venezuela and CUBA, as well as representatives
from the ESC Committee, the CHR's Special Rapporteur on
the Right to Food, and various NGOs argued that this
language was not sufficiently expansive, and thus
reflected a "cutting back" of the right to adequate food.
Second, this group of participants further argued that
General Comment 12 should be expressly referenced in the
Guidelines. Third, the group further argued that the
operative language in the guidelines should be made
stronger to at a minimum use the word "should" and, in
some cases, use the word "shall." Fourth, Jamaica, South
Africa, Switzerland and representatives from the ESC
Committee, the CHR's Special Rapporteur on the Right to
Food, and various NGOs further argued for the addition of
language favoring the justiciability (i.e., the ability
for citizens to bring civil judicial enforcement actions
in court) of the right to adequate food. A smaller but
still vocal group of participants (including Peru)
further argued that the Guidelines should have provisions
describing obligations of multinational corporations
relating to the right to adequate food. This proposal
mirrors a highly objectionable section in this year's
Special Rapporteur's report to the CHR, which, among its
other failings, argued that corporations were competent
to violate international law related to a right to food
and that States had separate and independent
international law obligations to prevent such violations.


10. (SBU) The United States delegation expressed its
opposition to these suggestions. A copy of the US
intervention appears after paragraph 20. Canada somewhat
vaguely expressed its general agreement with the US
approach on legal issues. The EU, which was internally
divided on many of these issues, did not address many of
the legal issues, but did make two helpful points: (1)
that the Guidelines should not imply that corporations
have obligations under international law; and (2) that
the Guidelines should not contain language either stating
of creating an impression that States' international
legal obligations apply outside of their territory (e.g.,
that Country A could violate a right to food with respect
to citizens in Country B by the way it conducted its
international assistance policies.)

International Framework
--------------


11. (SBU) Apart from the two paragraphs in draft
Guideline 14 on International Food Aid, language
describing the "International Framework" related to the
right to food and food security appear in Part V of the
Guidelines. (FYI: Of the current twelve pages of the
Guidelines, the current eleven paragraphs in Part V are
under a page in length.) As reported in paragraph 9 of
Ref. B, the US Bureau member was able in the final Bureau
meeting to have deleted a series of problematic proposals
on this subject. During the October IGWG session, it
became evident that many developing country delegations,
with support from the Special Rapporteur and NGOs, hope
to add new guidelines on how the activities of
international organizations and the operation of the
international trade and financial systems should take
into account the right to adequate food and food
security.


12. (SBU) Although the current draft of Part V with
only one exception is not substantively problematic, the
US delegation has from the beginning of the talks opposed
having a section describing the international framework.
Apart from taking a view that the mandate of the
negotiations was limited to actions within a country's
territory, the US delegation believed and believes that
any international section would become a magnet for
unacceptable proposals. Although, at the first meeting
of the IGWG, the EU and Japan opposed having provisions
on the international framework, it became clear during
the Bureau sessions that the EU would not continue to
oppose having such language in the Guidelines. At IGWG,
the Japanese reiterated its "preference" for no
international section, but quickly undercut that position
by stating that it was more important that there not be
language on international trade. At the October IGWG
session, Italy, speaking as President of the EU, reserved
its position on whether the Guidelines should have an
international section, but then gave substantive comments
on what such a section should and should not contain.
The United States was alone in taking a clear position
against an international section, in part to give itself
whatever leverage it could to resist extreme proposals.
That said, virtually all other delegations -- including
the spokespersons for the Asian, African, Latin American,
and Near Eastern Groups -- spoke of the importance of
there being an international section in the Voluntary
Guidelines. Brazil made the false but superficially
attractive point that an international section focusing
on the responsibilities of developed countries was
important to balance the rest of the Guidelines'
purported focus, at the domestic level, on the
obligations of developing countries. (FYI: This
representation is almost entirely false, as the
guidelines apply to both developed and developing
countries.)

Trade and Investment Provisions
--------------


13. (SBU) Many developing countries and representatives
from the Special Rapporteur and NGOs spoke at length on
the need to add directive language in the Guidelines that
the international trade and financial systems should be
operated in a manner to increase access to food. (As
specific proposals were not solicited, the precise
content of these ideas, perhaps mercifully, was never

made clear.) Unless stated otherwise, the
representatives of the Special Rapporteur and NGO's
supported these developing country views.) Mexico stated
that there needed to be a guideline on what it described
as "unfair trade practices." Egypt, speaking for the
Near East region, and Chile called for language ensuring
developing country access to markets. China, Bangladesh,
South Africa, the Philippines, Jamaica, Egypt and Brazil
stated that there needed to be additional language to
express the importance of developed countries' increasing
developing countries' access to their markets (the
current text has a neutral reference to the Doha mandate
in this regard). The Philippines went a step further (or
perhaps only a step more specific) to suggest that there
should be differentiated responsibilities, where
developed countries would assume greater obligations than
developing countries. With respect to the operation of
the international finance system, the same group of
countries indicated, without offering specifics, that the
guidelines should further take into account the needs of
developing countries. Egypt and Venezuela suggested that
there be a more specific provision on debt relief.
Jamaica called for a provision to increase the commitment
of developed countries to provide official development
assistance.


14. (SBU) In addition to the points made by the US
delegation opposing these proposals (see generally, the
opening statement after Para 20),Japan stated that it
did not support any provisions on trade. Italy, speaking
on behalf of the EU, after reserving its position
generally on whether there should be an international
section, stated that it would be important that any
language dealing with international trade be consistent
with the work currently being done at the WTO. Canada
echoed this point. Australia, which would normally be in
strong agreement with points made by the United States on
this and other issues, staffed this delegation from its
FAO mission and made virtually no interventions during
the meeting.

International Food Aid
--------------


15. (SBU) Due in part to the efforts of the US Bureau
members, the current draft guideline 14 contains two
anodyne provisions on international food aid. A few
delegations -- most vocally Venezuela -- stated that they
would like to see additional guidelines: (1) to instruct
or otherwise encourage developed countries to increase
international food aid; (2) to end practices of using
such food aid to "dump" food surpluses. Fian
International, which spoke at length throughout the
negotiations, stated that there should be a guideline
calling for the renegotiation of the Food Aid Convention.

Genetic Resources
--------------


16. (SBU) Again due to changes by US Bureau members,
current Guideline 7d contains an anodyne provision on
genetic resources for food and agriculture. Peru
indicated that it would like to see new language calling
for the protection of genetic resources in countries of
origin. Mexico and Iran stated that they would like more
specific references in the Guidelines to the provisions
in the Convention on Biological Diversity. Bangladesh
argued that agricultural genetic resources should be
considered to be public goods and that the guidelines
should recognize "farmers rights." Although specific
proposals were not offered, it seemed clear to the US
delegation that problematic proposals will probably be
put on the table in the February negotiating round.

Law of War and Foreign Occupation
--------------


17. (SBU) As reported in Ref. A, Para 9, the US
representative to the Bureau at the final Bureau meeting
was able to delete a problematic Guideline from the
Secretariat's draft titled "Armed Conflicts." In its

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place, the current draft Guidelines contain in the
preface the following language: "These Guidelines do not
address armed conflict and international humanitarian
law. It should be borne in mind, however, that states

have assumed important obligations related to this
subject matter under that body of law." In the October
IGWG meeting, Switzerland, Egypt, Syria, Iran, Cameroon,
and the representative from the ICRC objected to the
absence of substantive provisions on the right to food
during armed conflict. Switzerland, in the margins of
the meeting, circulated a formal, and substantively
unacceptable, proposal on the subject. Iran (the
delegation as opposed to Conference Chairman Noori) added
to this its view that there should be a guideline
condemning countries from starting wars.


18. (U) Syria stated that there should be a guideline
dealing with the right to adequate food and foreign
occupation. Although Syria did not speak to all of the
specifics of its proposal, it suggested that such a
guideline would condemn foreign occupations, provide that
the occupying power must not interfere with the right to
adequate food of the people in an occupied territory,
that occupying powers should not use food to "punish"
that population, and that the activities of an occupying
power should be reviewed by the ICRC.


19. (U) With respect to both law of war and foreign
occupation, the US delegation explained that these issues
were not within the mandate of this negotiation and that
there is already a detailed and complex body of
international law applicable to these situations. Any
attempt even to characterize this body of law would
invariably be, at best, selective and incomplete and, at
worst, inconsistent with this important body of law.

--------------
GENERAL CONCLUSIONS
--------------


20. (SBU) As reflected in the discussion above, the US
delegation to the February 2-5 negotiating round will
confront a series of unacceptable proposals on a wide
range of issues. While the delegation is currently well
staffed to deal with the legal, human rights, and food-
policy issues, it would greatly benefit from the addition
of an EB officer to help the delegation deal with
proposals on a wide range of international trade and
finance issues.

--------------
TEXT OF U.S. OPENING STATEMENT
--------------

The United States is pleased to participate in this
Intergovernmental Working Group. The United States is
deeply committed to international food security and our
actions bear this out. This statement is of a general
nature, and we will present our thoughts on individual
guidelines when we discuss each of these guidelines later
in this session. We will not attempt to address specific
proposals by delegations.

We believe the Voluntary Guidelines will be most useful
if they focus on practical steps to achieve national food
security and if they address ways that governments, non-
governmental organizations, and the private sector can
work together towards that end. As reflected in the
current structure of the guidelines, these practical
steps include: increasing agricultural productivity;
creating an enabling environment; promoting transparent
and accountable government; boosting agricultural science
and technology; developing domestic market and
international trade opportunities; securing property
rights and access to finance; enhancing human capital;
protecting the vulnerable; advancing the status of women;
and mainstreaming a gender perspective in national
institutions, policies, and budgets around the world. It
is also important that the guidelines address the
fundamental role played by good governance,
accountability, and the establishment or strengthening of
democratic institutions as a means to achieving food
security.

We believe the draft document before us is an excellent
starting point for our deliberations, and agree with
other delegations that have supported your call to make
this the basis of our work. Through intensive work, the
Bureau, representing all regions of the world and in

consultation with civil society, produced this draft. Our
Chairman has clarified that the Bureau believed the text
to be a good basis for conducting our negotiations. While
improvements to the text are necessary and appropriate,
we do not believe that a restructuring of the guidelines
is appropriate, nor do we think there is time for us to
do so. Indeed we believe that an attempt to restructure
the Guidelines, as well intentioned as it is, will run
the risk of our not reaching a successful conclusion of
our work.

We have a few general observations regarding the draft
document and the process for developing them that we
would like to make:

First, as a practical matter, we note that there is
little time available for delegations to negotiate these
Voluntary Guidelines. Our experience in large
negotiating sessions has proven time and again that
delegations can typically reach agreement on practical
measures that should be taken to address important
problems. In contrast, delegations typically cannot
resolve questions involving competing characterizations
of international law. Not surprisingly, countries are
not prepared to accept descriptions of international
legal obligations with which they disagree. Arguments
over such issues are contentious and un-resolvable. The
views of the United States on the legal issues
of what is described in the Universal Declaration of
Human Rights and the International Covenant on Economic,
Social and Cultural rights as the progressive realization
of the right to an adequate standard of living, including
food, are well known to other delegations. [insert
footnote]. Just as we would not insist that other
delegations be asked to accept our interpretation, by
memorializing such views in these Guidelines, we would
expect that others to not expect us or other countries to
be required to accept in this document descriptions of
international law with which they do not agree. In the
context of the current negotiation, not only has the
Inter-Governmental Working Group not been given a mandate
to attempt to interpret existing legal instruments, but
an attempt to do so would divert limited time 4d
attention away from national actions that can help
provide people with better access to food.

Second, as we stated at the first meeting of the IGWG, we
note that the Inter-Governmental Working Group is
mandated to focus on national food security.
Accordingly, we do not believe that Part V (International
Framework) is within the mandate of the IGWG. We would
note that this is a long-held and crosscutting position
of our government, and is not a criticism of the
sentiments conveyed in Part V of the current draft. As a
practical matter, we would be concerned that widely
divergent views of governments on international
cooperation -- many of which we have heard this afternoon
-- may present a stumbling block to completing our
negotiations within the time available to us. We would
note our agreement with the delegation of Japan that we
not attempt to deal with issues within the mandate of the
World Trade Organization.

Third, we agree fully with the decision taken by the
Bureau not to attempt in these Guidelines to address
armed conflict and international humanitarian law. Even
if it were somehow possible to deal with this
extraordinarily complex issue within the limited time
available to us, the law of armed conflict and
international humanitarian law is dealt with by other
international organizations and processes. These issues
lie outside the remit of this negotiation.

Fourth, we would not support adding to our mandate the
recommendations suggested by the Special Rapporteur in
its most recent report, nor do we agree with the
descriptions of international law contained in that
report.

Finally, I wanted to reiterate that we are very happy to
participate in this important process and we are fully
committed to work with our colleagues in this room to
help you, Mr. Chairman, make this process a success.

Begin Footnote: The Universal Declaration of Human

Rights states: "Everyone has the right to a standard of
living adequate for the health and well-being of himself
and his family, including food, clothing, housing and
medical care and necessary social services." The United
States believes that the attainment of the right to an
adequate standard of living is a goal or aspiration to be
realized progressively that does not give rise to
international obligations or domestic legal entitlements;
nor does it diminish the responsibilities of national
governments toward their citizens. The United States

understands the right of access to food to mean the
opportunity to secure food, and not guaranteed
entitlement. End footnote.

End of US Statement

--------------
U.S. INTERVENTION ON LEGAL ISSUES
--------------

Characterization of the "right" in the Voluntary
Guidelines

In our discussion of the legal issues, there are many
general issues where there are common views and a few
important issues of divergence. Areas many delegations
seem to agree:

-- that the Voluntary Guidelines are, by definition,
voluntary,

-- that they do not create new obligation on States, and
that their drafting should not contain words of legal
obligation;

-- that these negotiations of the Voluntary Guidelines
are not a forum to create new international law, to
renegotiate international agreements, or to attempt to
forge consensus on differing interpretations of
international treaties;

-- that statements regarding the obligations of states
parties to treaties need to be clearly expressed and
should also be clear that such obligations apply with
respect to such states parties; and

-- that the Voluntary Guidelines should not appear to
derogate from existing international treaty obligations.

These points of convergence, however, contain the seeds
of an area of disagreement. That is the circumstance in
which countries do not agree on the underlying scope and
contours of their obligations under particular treaties.

As the United States said in its opening comments,
countries are unwilling to accept descriptions of
international treaties and international law generally
with which they disagree. Nor, as a general matter, is
it reasonable in a negotiation of a non-binding
instrument such as this to expect a country to agree to a
description of international law with which it disagrees.

For this reason, political instruments typically do not
attempt to characterize or describe the specific scope of
obligations contained in international treaties, but
simply take note of them or, where appropriate, quote
word-for-word the actual language in the treaty.

-- Attempts to characterize the obligations are
inherently controversial and counterproductive.

-- It is the job of the parties to treaties to determine
the content of their obligations in good faith pursuant
to international treaty law as set out, under customary
international law, in the Vienna Convention on the Law of
Treaties.

Today, speakers have quoted language from General 12 of
the Committee of Economic, Social and cultural Rights
about what are described as obligations under the ESC
Covenant to "respect, protect and fulfill" the right to
adequate food.

-- This language appears nowhere in the Covenant.

-- Nor does the Covenant even provide for the existence
of the Committee, much less give it a mandate to issue
legally binding or legally authoritative interpretations
of its terms.

-- The United States has great respect for the Committee
and similar Committees established under other human
rights treaties. States sometimes agree with
interpretations offered by such committees. Sometimes
states do not agree, and there is nothing in the ESC
Covenant or elsewhere that provides that they are bound
to.

The problem with respect to paragraph 2 in the section
The Right to Adequate Food and Food Security is that the
United States, a signatory to the ESC Covenant,
fundamentally disagrees that the characterization of the
right in this paragraph and in General Comment 12 is an
accurate description of the rights contained in the ESC
Covenant.

-- It is inconsistent with the interpretation the United
States has consistently applied to the Covenant, which
was described at length in treaty materials submitted by
former President Jimmy Carter to the US Senate.

-- In the interest of time, we will not engage in a
substantive legal discussion of those differences of
view.

As a final matter, I would like to explain why my
government cares to deeply about this issue, even though
it has not ratified the ESC Covenant.

-- First, the United States is a signatory, and
signatories have certain responsibilities under
international treaty law.

-- Second, the precedent of citing non-binding General
Comments as authoritative law could have applications in
settings in which the United States is a party.

What is the solution to the problem?

-- Some delegations have expressed concerns that the
characterizations of the right in the Guidelines
exaggerate the right while others are concerned that the
description might restrictively interpret the ESC
Covenant.

-- The way to avoid this problem is the way found in all
such negotiations- to avoid characterizations and cite
the actual language of the instrument in question.

Justiciability of, and third party responsibilities
relating to, the progressive realization of the right to
adequate food.

On the issues of justiciability, as described above we do
not believe that the right to food is justiciable under
the International Covenant on Economic, Social and
Cultural Rights or other instruments of international
law.

-- Research circulated by the FAO Secretariat indicates
that there is a very wide array of methods for countries
under national laws to deal with providing access to
food.

-- Some countries may chose to create a right; some may
not.

-- Even among those that have a right under national law,
many do not create a right for individuals to bring
lawsuits against their government for enforcing such
rights.

-- It is this private right to bring lawsuits, which is
what is typically meant by those arguing for the creation
of a "justiciable" right.

Regarding third parties, we do not agree there is a
formal international legal obligation to "protect" the
progressive realization of the right to adequate food.

-- Thus, actions against private actors are not provided
for in the ICESCR or otherwise in international law.

-- We would not want to include language on this subject
in the Guidelines.

End of US Intervention on Legal Issues.

HALL


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2003ROME05747 - Classification: UNCLASSIFIED