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

[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.

Carl:

I want to understand a little bit more about how we can broaden our understanding of commercial practice, as you suggest, when people (or indeed nations) become much more self-focused, as may be the case during crises. So, here I am thinking about global pandemics or the dire effects of climate change, and how these can lead to food scarcity. What happens when communities start thinking that maybe they don’t really want to share anymore, out of fear that they may not have enough? 

Michael: 

Well, we’d have to unpack what people understand as the sense of self, for one. What I learned and experienced during the COVID 19 pandemic, when people were struggling and hunger was on the rise in ways people had never seen before, and middle-class families were now lining up at food banks, is that people were taking care of each other. The sense of self, I think, got very communal out of necessity, not ideologically. This is what got people through the pandemic. So, the idea is, if my neighbour is going hungry and I’m not hungry yet, there’s a good chance I’m going to be hungry very soon. And 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, because they will be stronger, and then they will be able to take care of me in return. So, these relationships of reciprocity were actually stronger during the pandemic. 

People were sharing. And what I heard in my consultations is that communities were sharing with each other. For instance, coastal communities and urban communities were sharing resources when there were supply chain breakdowns. So, I would argue that people actually shared more, and do share more in times of crises. I also know that people who have less tend to be more generous. I’ve seen this time and again. If you look at statistics of giving and sharing, people who have less are more generous, because they understand that sharing is necessary. In a way, it’s not really a choice. It’s actually a responsibility. I think rich people insulate themselves from others, and feel that sharing is now charity, because that just reaffirms their sense of power and plenty. But sharing is the only way to survive when confronted with very high stakes. 

The challenge is that, for the most part, there has been this dichotomy of the global versus the local. Either you are in favour of globalization or resigned to globalization, or you’re fighting for more local power. I think once we talk about sharing, this sense of self opens up and becomes communal. That then becomes a different mindset for approaching the way we understand food systems and the way we have to coordinate and cooperate within and then across our communities. And I think this opens up both political and legal possibilities. 

Just to give you a sense of this sharing across boundaries, Lebanese families are notoriously diasporic, since at least the nineteenth century. So in the pandemic, and then in Lebanon’s financial crisis, my sense of sharing was within my geographic community, my neighbourhood, and it was wonderful. Neighbours were taking care of each other, taking care of elderly faculty at the law school, checking in on them and if they were getting groceries. This was my geographic community. But I also experienced this transnational diasporic family network of cousins and uncles, all sharing resources with each other. Many communities have these systems of sharing, despite existing boundaries. This, I think, is the norm. This is people’s day to day reality. If we start like that, then we get somewhere more interesting.

Melanie:

In your writings, particularly since becoming the UN Special Rapporteur, you haven’t masked your suspicion of, or ambivalence towards, human rights. Would you say that there is a risk to attaching the concept and language of rights to the massive undertaking that is ensuring food security, knowing how politicised this discussion is, and how much is at stake?

Michael: 

I mean, the risk is always there. To your point, in theoretical terms, like any concept, there’s a side that can cause more suffering and a side that can liberate people from oppression. I’m really focused on the right to food as such because the right to food is given meaning and power by social movements more so than maybe some other types of rights, or the concept of human rights more broadly. When thinking about people within the right to food space. There are some that want to use the radical power of the right to food, to then radicalize human rights more broadly. My response to them is, ‘I support you. But that’s not my political agenda or my legal agenda. I won’t stand against it, and if you succeed, then I will rally behind you. But my approach is to keep the right to food as that unique space and use the right to food as the concept that brings a lot of international legal concepts together.’ 

So for me, the way I use the right to food takes power and meaning from social movements, understanding, in doctrinal terms, that the right to food’s meaning comes from there. Of course, we then have to bring in the United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas, the UN Declaration on the Rights of Indigenous Peoples, International Labour Law, and the Convention on the Elimination of All Forms of Discrimination Against Women. The system is fragmented, sure. But seeing international law as fragmented is a methodological choice. 

I can also say that I choose to give coherence and meaning, to all these supposedly disparate institutions and doctrines and tools and treaties, and what have you, through the right to food. I’m going to interpret it in a particular way to enhance certain relationships. So, I’m using the right to food to enable peasants and workers and pastoralists, and rural folk and city folk, and all these different constituents to have the same legal language to find solidarity amongst each other. 

León: 

That’s fascinating because it sounds like you are using the right to food as an open-sourced code and language to provide a platform for all these discussions. I’d be interested in hearing how you create new opportunities for engagement there. 

Michael: 

That is such a lovely question. To be honest, I don’t know, because I feel like I’m so in it. To your point of language, I focus on language in a lot of ways, both law as a language, but then also literally how I write my reports. So maybe this is the way I’m doing it. I think very concretely about how I communicate. I’ve forced myself to write a lot of op-eds, take a lot of interviews with journalists, write essays and blog entries, as well as write the thematic reports in a way that always has some technical section and a policy section, because the genre requires that I advise Member States to do something. But I’m trying to always focus on my language. I try and write for as broad an audience as possible, knowing that, though I am writing in English, my reports are going to be interpreted in five other languages. This is a very concrete exercise. 

One of my closest friends is an interpreter based in Lebanon, and I’ve heard her complain about interpreting NGO and UN reports. She keeps telling me that they are garbage. That the language used in them is empty and meaningless. So, I keep that voice of my close interpreter friend from Lebanon in my head, and I keep asking myself, ‘Is this empty garbage? Will this interpreter read this and think that there is nothing there?’ 

For example, I really focus on my first paragraphs. In the introductions of all my thematic reports, there is a section there that is meant to capture your imagination. And then there is a section which is part of the genre, where the third person is telling you what I’m going to do – ‘The special rapporteur has consulted with X’ etc. Many people find this to be a weird way of writing. That same friend, the interpreter, said that reading my introductions is like experiencing someone who has multiple voices in their head. And I think that’s right. So, I’m truly trying to articulate the meaning of the right to food in ways that enable me to have a conversation with absolutely everybody. That’s the universality of it. Does it enable me to speak to more people? Does it open up avenues for relationships? 

Carl: 

I want to end with something that inspired me during your Annual Lecture with the Asser Institute last April. Towards the end of your lecture, you mentioned the negotiations over a treaty on transnational corporations and human rights. Yet, you also highlighted that international law may or may not give us answers to the problems we have been discussing today. For me, this represented a conflict which I think many international lawyers have within themselves; something between hope and resignation when thinking about what can be achieved through international law. Thinking about your experience as a Special Rapporteur, but also as a teacher of international law, what are your thoughts on this internal conflict?

Michael:

Thank you for that question. Every day I will answer that question differently. This is today. 

So, on the treaty on business and human rights, there’s an ongoing negotiation, and in the beginning of my mandate I wasn’t convinced that that would achieve anything in terms of ‘is it going to limit corporate power or hold corporations accountable?’ However, in my engagements with different social movements, I always went into these conversations open-minded, acknowledging my own starting point. That starting point of mine was: ‘Listen, comrade, I’m not entirely convinced about this treaty thing. Really? A treaty? How Victorian of us. How 19th century of us.’ And the argument that changed my mind was: ‘Yes, but the battle over the treaty and the ongoing negotiations of the treaty has mobilized different groups that often don’t work together and has mobilized different governments that usually don’t play such a prominent role in international treaty negotiations. This is why it’s worth it.’ 

I heard this, and I thought but of course. Okay, the form might seem a little creaky and dated. But this is one form of doing law that we have, and this is one that millions of people have decided to dedicate their energy to. That means it is a form with open possibilities. So it does not matter if the treaty fails –although, by what definition are we to consider a treaty to have failed? – it doesn’t matter if the treaty is concluded, it doesn’t matter in the end what the specific treaty language is or isn’t. What matters was that an international campaign was mobilized, and that is now real, and that will create the social reality and the social meaning over what this treaty means or doesn’t mean, or what the negotiations mean or don’t mean. That’s what convinced me. I’m like, oh, okay, I got to get over myself and my own baggage, and then I totally changed my mind on the treaty.

But more broadly to your question of how one maintains some ambivalence, if not suspicion, of international law, and still be a teacher of it, a scholar in it, or an institutional actor, I wonder if referring to categories like ‘critical’ and ‘mainstream’ are helpful. Sometimes they are. But if you go back to Koskenniemi’s first book From Apology to Utopia, it’s actually about that. And I think that Koskenniemi’s argument is, actually international law has always carried that critical sensibility, and we, as individuals, also always carry that critical sensibility. 

So, I would argue, maybe it’s not about being critical or mainstream, or orthodox or heterodox, it’s essentially this: Are you a good lawyer, or a bad lawyer? I would use those terms. A good lawyer has to acknowledge and confront that tension internally in themselves and in the discipline all the time, and it is neither a strength or weakness, it is just the nature of being human. Am I part of the system? Am I in the system? Am I against the system? What is the system? All of those questions. 

That’s just the nature of law. Law is always about navigating competing interests in the sense of practice. You have a client; your client wants X. Run their desires through the machine, and somehow maintain your moral, ethical, and professional integrity. Every lawyer confronts that all the time. So I would say, a bad lawyer, a ‘not good’ lawyer, a lawyer I wouldn’t recommend someone to hire, or go take their class, or whatever, is the lawyer that pretends that there is this clean, coherent way: ‘There is the way’. But there isn’t the way; there’s a complex jumble of messiness. There are these complex relationships. Can you be a good person and a good lawyer? And I mean that in moral terms.

Can you live with yourself? This is ultimately all you have, right?