The Sovereignty of Sharing: An Interview with Michael Fakhri (Part I)

[León Castellanos-Jankiewicz and Carl Emilio Lewis are Researchers at the Asser Institute. Melanie Schneider is a Research Intern at the Asser Institute.]

Michael Fakhri, the UN Special Rapporteur on the Right to Food since 2020, is a professor at the University of Oregon School of Law where he teaches courses on human rights, food law, development, and commercial law. He investigates key environmental and policy issues relating to all stages of the food system, including production, transportation, packaging and consumption. Prof. Fakhri has taught courses on the right to food at Harvard Law School, the European University Institute, and the University of Arizona Indigenous Governance Program.

Last April in the Peace Palace, Prof. Michael Fakhri spoke on the right to food, violence and food systems during the 8^th Annual T.M.C. Asser Lecture.  “If I feed my neighbour, if I feed my kin, if I feed my loved ones, my friends, if I feed the community I’m in, in whatever sense, in effect I am feeding myself.” For this interview, Prof. Fakhri sat down with León Castellanos-Jankiewicz, Carl Emilio Lewis and Melanie Schneider to discuss the concept of sovereignty, unequal food systems and the power of community. The interview has been shortened for readability.

Melanie:

In your article ‘Third world sovereignty, indigenous sovereignty and food sovereignty: living with sovereignty despite the map’, you challenge the traditional legal concept of sovereignty. How does, according to you, the movement of food sovereignty interpret the legal concept of territory, and what impact would you say can or will this have on an international level? 

Michael:

At the outset, let me say that I do not want to claim to be speaking for the food sovereignty movement or to be interpreting the movement in a particular way, nor translating what a movement is saying into more technical or legal language. That is not what I am doing. Rather, it is more a question of learning. 

The food sovereignty movement starts off in the early 90s as a reaction against the rise of corporate power in food systems. It focused a lot of their political attention on the World Trade Organisation (WTO), the feeling and idea being that the WTO at the time – in 1994, when the WTO was new – would enable the rise of corporate power in food systems. 

At first, the movement deployed the language of food sovereignty. And the way they were defining it in their declarations in the mid-90s very much mirrored, and I suspect built upon, older ideas, like permanent sovereignty over natural resources. It was very state-based in its conception. So, one could argue that it was, at first, a sort of classical third-world-ist argument of trying to get power back into the state, against corporations. But it very quickly became more than that. 

What I really like about your question is that it brings in this notion of territory, so we are talking about land. It really gives sovereignty something very specific, in terms of who has control over land – and I think that is a lot of what is at stake. The food sovereignty movement was very producer-driven early on, so it was very much about peasants, and fishers and pastoralists, but it also then opened up this notion of territory. And I like the ambiguity of territory, because a community might have a sense of territory that crosses borders; a community’s territory might be across multiple jurisdictions or overlapping jurisdictions that have their own history, ecology, geography etc. 

But I’m learning now that territory is also about who has responsibility over a certain area. And that sense of responsibility, I think, comes with the political identity of peasants, the political identity of pastoralists, of fishers, etc. Again, as a political identity, as people who have a long-standing relationship with a certain area, a certain territory, and a sense of inter-generational responsibility, both in terms of the past and the future, this overlaps significantly with notions of indigenous sovereignty, as found especially in the North American context. 

Carl: 

When thinking about sovereignty, I cannot help thinking about contestation over territory, and of course food and resources. And so I want to focus a little bit on this issue of contestation. The world doesn’t seem to have a problem when it comes to the quantity of food available, but rather, how that food is distributed. Some have plenty, others have hardly any. A question that comes to my mind is what global legal avenues are available to encourage, if not mandate, the sharing of resources? 

Michael:

That is the question. First, what I really like Carl, is where you have us starting on: sharing. That already puts us on a very particular path. So, one understanding of sovereignty is absolute power over a particular delineated territory. The word sharing, or the concept of sharing is not in there. It’s about keeping people out. Whereas if we start with, ‘we are sharing’ – I don’t want to say resources, I’m trying to learn to use that phrase less, but it’s still a hard habit to beat I have to admit – we still have to answer: ‘Sharing what’? To go back to Melanie’s question. We’re sharing space. We’re sharing life. If we start by saying okay, this is actually what we’re doing, this is actually what we’re sharing, then we can talk about sovereignty differently. 

But the corollary of sovereignty, of course, is property, and this is not a new idea. Think of the work of Morris Cohen, Joseph Singer, Brenna Bhandar and now Martti Koskenniemi. There is a long-standing understanding that property and sovereignty go hand-in-hand. So, we have a set of complex private and public legal mechanisms, tools, frameworks, to understand territory and even that might not be enough. 

What I’ve also learned about the food sovereignty movement, and which I like, is that when the discussion is about land, they don’t use the term property because property implies private ownership. That’s such a narrow, specific, and one could argue problematic way of understanding land. It’s essentially commodifying land. Instead, they talk about land tenure. There’s a policy tool that came out of the Committee on Food Security soon after the last food crisis, and it’s the Voluntary Guidelines on Tenure. And social movements, broadly speaking, really like that one, because when we talk about land tenure, what we’re talking about is systems of organizing how we share and live together and share territory and land, but in a way that prioritizes stability. 

So, if we start thinking in terms of territory, land tenure, maintaining long standing relationships with space and territory, of our relationship with the land being, in effect, how we relate with each other, and vice versa, sort of, these things are inseparable. So if property and sovereignty are different sides of the same coin, they still fall into distinctions between public and private power. I wonder then if the food sovereignty movement is trying to create a notion of sovereignty where its corollary isn’t property as such, but land tenure – two communal ways of organizing power around territory. 

León:

I think that’s a good transition into the following question, which is about framing. In your own academic and UN work, you identify the agrifood industry, market speculation and commodity futures as the number one cause of soaring food prices, hunger and famine. My question is about your choice to present these problems in the register of Third World Approaches to International Law (TWAIL). How did you choose the flagship issues of your mandate, and the register in which you wanted to make your intervention as UN Special Rapporteur? 

Michael:

It’s weird in the sense that I don’t always experience this as a choice. I think it’s because of the nature of the job of a UN Special Rapporteur who focuses on food, in a food crisis, in the pandemic. A lot of what I had to do was to react. And admittedly, I drew from my training. For the last 20 years, I’ve been training in different critical traditions, looking at political economy and understanding law in a very particular context. And so, when things got real in the nature of the UN Special Rapporteur job, I immediately turned to this training, which allowed me to talk to a wide range of people that I could bring legal knowledge and legal understanding to, and articulate it in a way and in a context that would clarify what’s at stake. 

These are the questions I always ask: What’s at stake? Then, mapping power, I ask, who has power? In what way? And what are the mechanisms that enable or disable people from organizing? My theory of change is based on relationships. So, I’m looking at how law is creating certain relationships, enabling certain relationships, and maybe making other relationships harder. And then the other training that I have is to be weary of the nature of expertise as an expert myself. 

That’s my training. That’s my default when I walk into that space. 

León: 

So how does this training impact your work as Special Rapporteur? What added value does it bring to your role?

Michael:

Firstly, when I went to the Security Council, the challenge I had politically, is understanding that nothing was going to happen there. I know this. They’re going to veto whatever proposal is put forward. Because of this, one can argue that the legitimacy of the Security Council itself is being challenged even more so today than ever, and rightfully so. Secondly, conceptually, I don’t want food to be dealt with as a security issue, especially by the Security Council. That, I feel, is too narrow and problematic and dangerous. 

So, admittedly, I had to turn to a comrade. I turned to Ntina Tzouvala for advice, and we thought through this issue, together. In the end, what I recognised is that, yes, I would be talking to the Security Council, but I knew that the members of the General Assembly were going to be there too. I was, therefore, talking more broadly to the General Assembly. That helped me understand ‘Okay, this is my audience’. And that’s an important question: Who is my audience? With this question in mind, it then becomes a politics of framing, because how you frame the problem determines what solutions are even possible, and I wanted to point in a particular direction. 

Because I come from a tradition of TWAIL which is inherently suspicious of human rights, I want to advance human rights as one way of doing things, amongst a lot of other different ways, but still take human rights very seriously, because that’s my mandate. To do this, I introduce more ingredients like political economy and trade. And trade is a very specific thing, not only because it is more my area of expertise and background, but because you cannot do food policy in any way without having an articulation of trade policy. This is recognized in Article 11.2 of the International Covenant on Economic and Social Cultural Rights which talks about trade and food. Every articulation about food security by any definition, always has a notion of trade. 

Yet, for some reason we don’t talk enough about trade and food. Even the Food Sovereignty Movement is still struggling to articulate a very clear vision of what trade should look like; trade that promotes more local production, land tenure, increased biodiversity, grassroots power, etc. It’s unclear what that is. And so, I just want to rally everybody, everyone, to talk more about trade, not just in the context of the WTO or bilateral treaties, for instance. Not just in terms of political economy. But in terms of food, and not as a commodity. 

Food gets commodified in a lot of different and complex ways. The most current way is to turn it into a financial instrument. What’s interesting to me is whether we can imagine markets, the buying and selling of food, and the commercial practices necessary for the making, sharing and eating of food, in a way that is not about commodifying food as such, or treating food as any other item that can be bought and sold that way. 

I’m not anti-market. I’m not anti-commerce. But commerce needs to be understood in a way that captures more than ‘I have a commodity. It is mine. I have property rights, and I transfer those property rights to you.’ There is more to consider beyond financial instruments which we speculate on in a particular way. Whether we’re hunting, fishing or sharing food, this all counts in commercial practice broadly defined. So we can really broaden our understanding of commercial practice.