Agricultural law current issues from a global perspective

LITES – Legal Issues in
Transdisciplinary Environmental Studies 1
Series Editors: Massimo Monteduro · Saverio Di Benedetto
Alessandro Isoni

Mariagrazia Alabrese
Margherita Brunori
Silvia Rolandi · Andrea Saba Editors

Agricultural
Law
Current Issues from
a Global Perspective

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LITES – Legal Issues in Transdisciplinary
Environmental Studies

Volume 1

Series Editors
Massimo Monteduro
University of Salento, Lecce, Italy
Saverio Di Benedetto
University of Salento, Lecce, Italy
Alessandro Isoni
University of Salento, Lecce, Italy

The ‘Legal Issues in Transdisciplinary Environmental Studies’ (LITES) Book Series
is based on the assumption that the process of dialogue and cultural integration
between law, life and earth sciences, and social and human sciences should be
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concept of the environment is conceived as a complex system of relationships
between ecological and social factors, including the cultural and economic ones.
The primary purpose of law, in this conceptual framework, is to preside over the
durability of the essential conditions for the survival of the social-ecological systems
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Mariagrazia Alabrese • Margherita Brunori •
Silvia Rolandi • Andrea Saba

Editors

Agricultural Law
Current Issues from a Global Perspective


Editors
Mariagrazia Alabrese
DIRPOLIS - Institute of Law, Politics
and Development
Scuola Superiore Sant’Anna
Pisa, Italy

Margherita Brunori
DIRPOLIS - Institute of Law, Politics
and Development
Scuola Superiore Sant’Anna
Pisa, Italy

Silvia Rolandi
DIRPOLIS - Institute of Law, Politics
and Development
Scuola Superiore Sant’Anna
Pisa, Italy

Andrea Saba
DIRPOLIS - Institute of Law, Politics
and Development
Scuola Superiore Sant’Anna
Pisa, Italy

ISSN 2522-5049
ISSN 2522-5057 (electronic)
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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Preface

Legal scholars are paying increasing attention to agricultural issues. Nevertheless,
the field largely remains an underresearched area of law and is considered historically as a specific area of research for life sciences and economics. The number and
scope of questions that revolve around agricultural issues are increasingly requiring
the legal research community to adopt a new approach. Challenges, such as the
governance of the food system worldwide, the maintenance of agricultural natural
resources, as well as land governance, are making it necessary to address agri-food
and agri-environmental issues with a globalized approach. Against this background,
the book aims to address some of the complexities of the agri-food and agrienvironmental regimes.
The Introduction traces the evolution of agricultural law and provides an overview of the new social and environmental challenges that will need to be addressed.
Emerging issues are placed in the broader conceptual context of a global
perspective.
The chapters are grouped into three main parts, each of which has its own brief
introduction.
Part I covers the governance of natural resources and their prominence in
tackling food insecurity. Every agricultural activity begins with the resources
provided by nature. While in the past they were traditionally regulated by national
governments, today their regulation is increasingly being addressed through a
framework of international governance. This is due to the necessity to preserve
the availability of natural resources and the conservation of ecosystems while at the
same time responding to the growing world population and the relating demand for
food, in particular for more protein-rich diets, as well as other nonfood agricultural
products. With regard to these aspects, this part examines the concepts of sustainable 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 developments, interactions between “public” and “private” standards, food safety issues,
animal welfare standards, and markets. This part outlines the answers that agri-food
v

vi

Preface

regulations are able to provide in order to meet new and evolving consumer
interests and concerns. Novel foods, animal welfare, direct sales of specific food
products, and the development of e-commerce in the food sector are also covered.
Part III concerns the social, environmental, and legal consequences of a renewed
interest in agricultural investment. Top-down interventions in agricultural systems,
led by both national and international public and private actors, often clash with the
vulnerability of customary local systems on which the livelihood of a rural population relies. The evolution and the interplay of different legal systems with regard
to land tenure, environmental concerns, and investments in agriculture are
discussed, drawing on both the most recent international debate as well as case
studies.
Pisa, Italy

Mariagrazia Alabrese
Margherita Brunori
Silvia Rolandi
Andrea Saba

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Contents

Agricultural Law from a Global Perspective: An Introduction . . . . . . .
Mariagrazia Alabrese
Part I

1

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 . . . . . . . . . . .
Elisa Morgera and Andrea Saba

15

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

19

International Law on Plant Genetic Resources for Food
and Agriculture: Towards a New Balance? . . . . . . . . . . . . . . . . . . . . . .
Anna G. Micara

53

Results-Based Agri-Environmental Schemes for Delivering Ecosystem
Services in the EU: Established Issues and Emerging Trends . . . . . . . .
Andrea Saba

83

The Legal Instruments for Agri-Environmental Goals and the

Influence of International Factors: The Case of Swiss Agricultural
Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
Christa Preisig
Part II

Emerging Consumers’ Interests: Answers from the Agri-Food
Regulation

The Emerging Interests of Consumers: Answers from the Agri-Food
Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
Vito Rubino
vii


viii

Contents

Insects in Agriculture: Traditional Roles and Beyond . . . . . . . . . . . . . . 163
Valeria Paganizza
Animal Welfare Standards in Agriculture: Drivers, Implications,
Interface? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
Diane Ryland
Legal Pluralism and the Regulation of Raw Milk Sales in Canada:
Creating Space for Multiple Normative Orders at the Food
Policy Table . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
Sarah Berger Richardson
Food E-Commerce as a New Tool for the Growth of the Economy.
European Legal Framework for Information of Prepacked Food Sold
Online . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231

Silvia Rolandi
Part III

Land Tenure, Investment Law and Agriculture

Land Governance, Investment Law, Agriculture, and the Rights
of Local Populations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
Adriana Bessa and Margherita Brunori
Access to Land and Security of Tenure in the Resolutions
of the United Nations General Assembly . . . . . . . . . . . . . . . . . . . . . . . . 255
Margherita Brunori
Global Land Rush, Water Grabbing and the Human Right
to Water . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293
Francesca Spagnuolo
The Regulatory Vicious Circle of Investment Operations
in Agriculture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
Federica Violi
Between Customary and Statutory Tenure: Understanding
Large-Scale Land Acquisitions in Zambia . . . . . . . . . . . . . . . . . . . . . . . 341
Margherita Baldarelli
Agricultural Land Ownership as Food Sovereignty: The Case
of Slovakia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367
Katarı´na Dirgasova´ and Jarmila Lazı´kova´

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Agricultural Law from a Global Perspective:
An Introduction
Mariagrazia Alabrese

1 Introduction
Over the years, a growing number of scholars have been involved in different
aspects of agricultural law, which is an inspiring and challenging field.
It is challenging from a “technical” point of view because it embraces international, national, and subnational norms and institutions. It also involves several
other related disciplines, such as commercial law, contract law, administrative law,
law on finance and credit, labor law, the legal framework of insurance, intellectual
property regulation, trade law, to mention just a few.1
It is also challenging from a “political” viewpoint because it tackles key complex
issues, such as the governance of the global food system, the maintenance of
agricultural natural resources, the world trade of commodities, the agribusiness
sector. As recently reported, “a strong agricultural economy is the key to a peaceful
society. Without a reliable supply of safe, affordable food, the future will be one of
famine, disease, and disorder on a global scale.”2 In fact, good agriculture policies
and the modernization of the agri-food sector play a huge role in one of the most
significant political and socioeconomic challenges that States are currently facing,
notably in the area of migration, which usually originates from rural regions.3
This branch of law is inspiring because it deals with fundamental rights and
values. It looks at the management of natural resources and securing the very basic
needs of human beings in every corner of the world. Agriculture is an economic
1
Hamilton (1990), p. 505, shares this view that the “the variety of issues implicated in a typical
agricultural relationship” make the study and practice of agricultural law challenging.
2
Jacobi and Andersen (2016), p. 178.
3
FAO (2016).

M. Alabrese (*)
DIRPOLIS - Institute of Law, Politics and Development, Scuola Superiore Sant’Anna, Pisa, Italy

e-mail:
© 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


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M. Alabrese

activity that not only produces food and fiber but also creates both tangible and
intangible values. Regulating agriculture also involves rural development and, in
most cases, the role of women and gender equality.4 It also means securing safe
food and water, protecting the environment, and preserving the landscape. As Neil
Hamilton wrote many years ago: “Agricultural lawyers play a fundamental role in
servicing the legal needs of the food and agricultural sector and in helping [nations]
craft the legal and institutional arrangements responsible for promoting a productive, profitable, and sustainable agriculture.” Indeed, recognizing that “the law is
what gives legs to policy,” he stressed the fundamental role that lawyers and legal
institutions can play in shaping the future of agriculture.5
Against this background, questions arise as to what the future of agriculture is
and what legal framework is appropriate. Defining the content of agricultural law is
urgently needed in the face of the dramatic changes that have taken place over the
last few years. The present chapter looks at the definition of agricultural law. It
describes the intersection of agricultural law with other related fields, such as food
and environmental law. Finally, it portrays the development and relation of agricultural law to all the aforementioned issues and calls for the adoption a global
approach.

2 What Is Agricultural Law?

Defining “agricultural law” is not easy. The literature on the subject is vast and
cannot 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 for
the following chapters.
If agricultural law is described as the system of laws and principles regulating
agriculture, 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 or
operation as agricultural resulted in the application of a more favorable legal
regime. With regard to the USA, for example, “An increasingly important issue
may be whether some food producing operations lose their status as agricultural if
they reach a certain size or are organized in certain ways.”6 This thus confirms the
link between agricultural status (in the specific case attached to the operator’s size
and organization) and the special discipline reserved for an economic activity. The
question as to the meaning of agriculture has also been triggered by the need to deal
with 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.

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Agricultural Law from a Global Perspective: An Introduction

3

possible “to shift around between a number of different but sometimes related
meanings,” eventually focusing on the vision of “agriculture as the growth of food
products” and “as a promoter of broader goals,” as in the case of multifunctional
agriculture.7
The academic literature has debated the definition and the content of agriculture
extensively in defining agricultural law. Drawing the boundaries of the subject was
deemed as fundamental not only for economic and practical reasons (to identify the
cases when a producer could be subjected to protective treatment) but also due to
the 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 a
process. The construction of an autonomous branch of law presupposes the existence of a robust apparatus of rules and principles organized in a systemic fashion.
In addition, it implies the recognition of appropriate specific features that could
distinguish it as a separate subject. Such recognition is, in turn, dependent on an
exact understanding of the agricultural sector.

2.1

Identifying the Meaning of Agricultural Law Through
the Definition of Agriculture

The French and Italian legal frameworks provide a fascinating definition of agriculture. It stems from a breakthrough theory developed in the 1970s by the Italian
scholar Antonio Carrozza8 and further investigated by Alfredo Massart,9 which was
transposed into a French piece of legislation in 1988.10 In 2001,11 it was incorporated into the Italian Civil Code article on the agricultural entrepreneur. According
to this theory, agriculture is made up of a set of activities devoted to the care and
development of an animal and/or vegetal biological life cycle, which depends on
the deployment of natural resources, such as land and water. This description of
agriculture was more developed and precise than the common one referring basically 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 and

vegetal, 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) and
fish farming. It also considered fur or race horse farming as agriculture activities

7

Smith (2009), pp. 21–24.
The most elaborated version of the theory was published in 1975 though the author had been
presenting it at Congresses since 1972, see Carrozza (1975a).
9
Massart (1974).
10
France, Law 1202/1988, “L’adaptation de l’exploitation agricole a son environnement
economique et social.”
11
Article 2135 of the Italian Civil Code has been emended in 2001 by Legislative Decree
228/2001.
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M. Alabrese

and not only the rearing of animals to provide food, wool, milk, which have
traditionally 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 or
energy feedstock fit the definition of agriculture, as such activities consist in the
care and development of these plants. It is also worth noting that this theory carried
the risk that any activity connected to the development of living beings, as in the

case of bacteria for the pharmaceutical industry, could be labeled as agricultural and
regulated by agricultural law. In order to avoid this risk, the Italian legal definition
made it clear that the relevant activities had to be suitable for carrying out on the
land, although in the specific cases they were not exploiting the soil.12 Thus, when
the land was not suitable for breeding animals or growing plants, as in the case of
bacteria, the related activity was not deemed to be “agricultural.” The legal
definition of agriculture is also complemented by many other activities that can
be carried out by the agricultural entrepreneur, under certain conditions, under the
same legal treatment. These further activities, such as the processing and direct
selling of agri-food products, providing services (agro-environmental or more
“cultural” services, such as those related to hosting people on farms to educate
them about farming and the countryside), etc., which significantly broadened the
content 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 of
living things. It is therefore vulnerable to natural processes and natural forces; it is
not truly under human control as it is inextricably intertwined with nature. This
gives the industry a special status [. . .].”13

2.2

A Second Pattern: Characterizing Agricultural Law
in Terms of Its Regulatory Schemes

An alternative approach to defining agricultural law without focusing on a legal
definition 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 as
agricultural contracts, the legal system of the farmland, etc. This method has been

recently 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, rural
area.14 Here, the definition of agricultural law is completely focused on highlighting
12

See Costato (2003), pp. 3–4.
Schneider (2009), p. 2.
14
Raisz and Szila´gyi (2012), p. 109 and Szila´gyi (2009).
13

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Agricultural Law from a Global Perspective: An Introduction

5

the several sets of rules that can be ascribed to the agricultural system, without
much concern for the possible legal notion of agriculture. This pattern is also well
known in Italy as Carrozza developed it further in order to draw the boundaries of
agricultural law with a bottom-up approach.15 This consisted in identifying the
norms regulating the many stages of agricultural production in the national and
supranational legal systems, together with several other aspects of the agricultural
sector. The aim was to group them into coherent sets of rules that could represent
the backbone of agricultural law.

2.3

Agricultural Law as an Autonomous Branch of 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 was
adopted “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 of
agricultural law. In Italy, for example, the first academic journal completely
devoted to agricultural law (Rivista di Diritto Agrario) dates back to 1922, as
well as the first academic chair, which was established in Tuscany in the same
year (indeed, Italy is usually referred to as the cradle of agricultural law).17
Nonetheless, the academic discussion around the autonomy of the legal branch of
agricultural 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 countries
where it is mainly studied as a field of land law, as in the UK,18 or within the wider
area 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 the
United States, the development of agricultural law into an acknowledged field of
law started in the late 1970s.20 In Latin America, the discipline is very well
15

Carrozza (1975b).
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 agricultural law in Spain, see Sa´nchez Herna´ndez (2002) and Espı´n Alba and Vattier Fuenzalida (2005).
20
Hamilton (1990), p. 513.
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M. Alabrese

developed, and there are often special agricultural tribunals, as in the cases of Costa
Rica, Bolivia, Panama, Mexico, and Venezuela.
The recognition of agricultural law as an autonomous branch of law has always
been considered as a significant step in its further evolution. With this objective in
mind, in 1988 a Worldwide Academic Union of Agricultural Lawyers (UMAU)
was established in Pisa (Italy) by a group of academics from Europe, Africa, and
South America.21 It enables scholars from all over the world to cooperate and share
experiences. It plays a central role in the study and further development of agricultural law through a comparative approach, with a view to increasing understanding
around the globe and promoting relevant social research.

3 From “Food and Fiber Production” to a Broader Content
At the EU level, the definition of agriculture can be inferred from article 38(1) of
the Treaty on the Functioning of the European Union (ex article 32 TCE), according
to which“‘Agricultural products’ means the products of the soil, of stockfarming
and of fisheries and products of first-stage processing directly related to these

products.” In this definition, however, the emphasis is on the products rather than
the activities. Despite this, the content and scope of the regulation dealing with such
products 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 of
the Treaty, which is the Title devoted to agriculture (i.e., articles 39–44), applies to
the 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 application 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 of
agriculture, and clearly highlights all the limitations of listings when it comes to the
law. Indeed, on the one hand, the products listed in Annex I are not all the possible
products related to the soil, stock farming and fisheries: wood, for example, is not
included, which is not a matter of being a nonfood product, as tobacco and flax are
listed. On the other hand, the Annex includes food that is beyond a “first-stage of
processing.”22 Such “bias” in the Annex can be understood by considering that its
aim was not to provide a definition of agriculture. Rather, in order to design an
exceptional regime, it collected the main products that were traditionally produced
by the agricultural sectors in the first six Member States that founded the European
Economic Community (i.e., Belgium, France, Italy, Luxembourg, the Netherlands,
and West Germany). As far as the processed food products listed in the Annex are
concerned, their inclusion was due to the “close economic interdependence

21
It is still working and promotes agricultural law and its aims. See .
Accessed 15 December 2016.
22
See Manservisi (1990) and Costato (2003).

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Agricultural Law from a Global Perspective: An Introduction

7

between them and the basic products, so that it would not be justifiable to apply the
agricultural system to the basic products, while applying to the processed products
the general rules of the Treaty.”23 Moreover, as the EU regime is essentially market
oriented 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 are
the result of catching fish, i.e. not an agricultural activity, instead of the rearing of
fish, which consists in the care and development of a biological cycle.
The evolution of the EU policy on agriculture, which has been adding environmental, ethical, and social aims to productive and economic ones, led to the focus
on the notion of “agriculture” in addition to “agricultural products.” Indeed, one of
the EU pieces of legislation establishing a pivotal review of the agricultural policy
described “agricultural activity,” for the purposes of the regulation, as “the production, rearing or growing of agricultural products including harvesting, milking,
breeding animals and keeping animals for farming purposes, or maintaining the
land in good agricultural and environmental condition.”24 In this vein, the latest
regulation on the Common Agricultural Policy provides a more accurate definition,
stating that “‘agricultural activity’ means: (i) production, rearing or growing of
agricultural products, including harvesting, milking, breeding animals, and keeping
animals for farming purposes, (ii) maintaining an agricultural area in a state which
makes it suitable for grazing or cultivation without preparatory action going beyond
usual agricultural methods and machineries, based on criteria established by Member States on the basis of a framework established by the Commission, or (iii)
carrying out a minimum activity, defined by Member States, on agricultural areas
naturally kept in a state suitable for grazing or cultivation.”25 This definition is only
one of the signals showing how “the European Model of Agriculture” has broadened its objectives over the years. Starting from late 1990s, it has decisively shifted
towards “multifunctionality,” as Cardwell clearly explains in a seminal book on the
subject.26 “Multifunctionality,” which has developed within an international framework, refers to the idea that agriculture jointly produces multiple commodity and
non-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.
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).
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M. Alabrese

related to rural development, the environment, food safety, food quality, animal
health, and welfare. “The introduction of the concept of multifunctionality [. . .]
recognises that beyond its primary function of supplying food and fibre, agricultural
activity can also shape the landscape, provide environmental benefits such as land

conservation, the sustainable management of renewable natural resources and the
preservation of biodiversity, and contribute to the socio-economic viability of many
rural areas.”27 One of the consequences of this major shift has been to move the
attention from a “produce more for less (money)” approach to a “produce more with
less (resources)” approach. It also highlighted the particular essence of agriculture
as being intertwined with the ecosystems, its unique role in responding to fundamental needs by providing food, and its overall contribution to a human-rightsoriented development.
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 policies
that apply to the production, marketing, and sale of agricultural products, i.e., the
food we eat, the natural fibers we wear, and increasingly, the bio-fuels that run our
vehicles.”28 However, she firmly calls for a reconsideration of the framework of the
subject, concluding that “‘Agricultural law’ should be recast as the law of food,
farming, and sustainability, with the sustainable production and delivery of healthy
food to consumers as its central goal.”29 Such a reframing underlies the extension of
the content of agricultural law by focusing on the many “functions” that the sector
can fulfill.

4 The Shape of Current Agricultural Law
The shape of current agricultural law could be described as the complex and
dynamic set of laws, regulations, policies, and principles established under
multilevel authorities, both public and private, governing the agricultural system
and its intersection with food and environmental systems.
The reference to systems instead of activities helps in emphasizing the multifaceted structures involved, their socioeconomic outcomes, and complex links. The
system approach underlines the dependence of agricultural productivity on the state
of natural resources, which, in turn, is linked to the environmental impacts of foodrelated or energy-related activities. In addition, this approach sheds light on the web
of needs and aspirations that are dependent on the availability of, and access to,
food. The availability of, and access to, food are, in turn, dependent on agricultural
productivity, but they also raise other issues, such as trade and rural development
policies, which need to be taken into account within the system approach.

27

See OECD (2001).
Schneider (2010), p. 935.
29
Schneider (2010), p. 937.
28

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Agricultural Law from a Global Perspective: An Introduction

9

The reference to a multilevel legal framework refers to international, regional,
national and local principles and regulations forming the law of the agricultural
system. The public and private entities referred to as sources of the relevant rules
reflect the growing phenomenon of coregulation in the agri-food sector, which
involves public and private actors and usually results in private standards and good
practices.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 no
longer be asserted that the only objective of agricultural law is to regulate the
produce and market of food and fiber.31 The “classical” concept of agricultural law
revolved chiefly around the regulation of farmland. From the 1990s, environmental
concerns and the rapid industrialization of agriculture have added new subjects to
the field of agricultural law.32 As soon as social, ethical, and environmental factors
were given prominence, several new issues arose. The worldwide effects of land
use patterns and the limits of natural resources started to be confronted. The issue of

food security and its intersection with international trade trajectories was at stake.
The result of this development of agricultural law contributed to the widening of the
legal fields involved in the regulation of the sector, which, in the Introduction to this
chapter, is characterized as one of the “challenges” posed by this branch of law.
Monteduro argues that this feature represents a “deconstruction/fragmentation of
the complex universe of rus into elementary and disjointed legal particles.”33
Agricultural lawyers would rather address it as a natural consequence of the
growing complexity of the matter. They would characterize the several sets of
rules concerned as building blocks of the agricultural legal system and would deal
with them with the aim of coherently systematizing the norms. Indeed, the links
between upstream and downstream activities with agriculture, as well as its multiple functions, create a continuum in the relevant legal framework rather than a
fragmentation. This thus makes it difficult to address the agricultural sector without
handling several fields of law.34
The second remark relates to the intersection of agricultural law with closely
connected branches of law, such as food law and environmental law. The product of
this intersection constitutes a significant part of agricultural law. This part sometimes stands with the labels of agri-food law and agri-environmental law in order to
emphasize the overlapping areas of the legal frameworks governing agriculture, the
environment, and the food system. In the case of agri-food law, the relationship
with agricultural law looks stronger since “the agricultural production stage represents a necessary stage in the food process”35 and a large number of food

30

Garcia Martinez et al. (2007) and Busch (2011).
Hamilton (1990), p. 503.
32
Hamilton (1993), p. 211.
33
Monteduro (2015), p. 65.
34
Jannarelli (2003), p. 377.

35
Russo (2012), p. 142.
31


10

M. Alabrese

regulations are applicable to the primary production. That said, it is worth stressing
that agriculture also produces nonfood products, which means that agricultural law
cannot be dissolved into food law. As far as environmental law is concerned, there
are many links between agriculture, natural resources, and climate change.36 The
nexus is well known between the need for agriculture to protect natural resources
that provide the basis for continued agricultural productivity and the farming
practices that result in the contamination and degradation of the environment and
ecosystems. The overlap is often referred to as agri-environmental law in order to
identify the intersection, i.e. the cases when both environmental rules regulate
agricultural 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 many
environmental policies not related to farming.
The third and final remark on current agricultural law focuses on its global
dimension. The multifaceted features of the food and agriculture system, as well as
the recent phenomenon of the cross-border fragmentation of production characterizing the agri-food chains, highlight the need to adopt a globalized approach. The
aforementioned “political challenges” such as food security, environmental protection, climate change, and their strong ties with hot international issues such as
migration, peace, and political stability are all indicators of the economic, social,
and political pressures that current agricultural law and policy are facing worldwide. These pressures require a comprehensive and global vision. This picture
presents a fundamental challenge to agricultural lawyers. They need to understand
the complexities of cross-border agricultural regimes, to map out the hottest issues

at stake, and to address the rapidly growing phenomena affecting world agriculture
and, consequently, many fundamental rights. Agricultural lawyers are required to
provide an adequate and comprehensive conceptual tool to address the growing
analytical complexity of the global food system and the cross-border effects of the
agricultural models. They also need to identify the interests, values, and aims that
shape global agricultural law. This could entail a reconceptualization using a
teleological approach, that is, describing agricultural law by the globally valid
purposes it serves, such as, among others, development and food security. This
reconceptualization also implies drawing up comprehensive global principles,
which capture the universal essence of the matter and which inform the multilevel
sets of laws and regulations that govern the agri-food systems all over the world.
Despite the fact that different agricultural models require different national and
regional laws and policies, the aforementioned dramatic cross-border developments
no longer allow domestic laws to exist in isolation. These developments present
pressing issues of universalism that requires a principle-based framework for
agriculture focused on the need to respond to the global political challenges of
the 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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References

Borghi P (2004) L’agricoltura nel trattato di Marrakech. Prodotti agricoli e alimentari nel diritto
del commercio internazionale. Giuffre´, Milano
Busch L (2011) Quasi-states? The unexpected rise of private food law. In: der Meulen BMJ V
(ed) Private food law. Governing food chains through contract law, self-regulation, private
standards, audits and certification schemes. Wageningen Academic Publishers Books,
Wageningen, pp 51–73
Cardwell M (2004) European model of agriculture. Oxford University Press, Oxford
Carrozza A (1975a) Problemi generali e profili di qualificazione del diritto agrario. Giuffre´,
Milano
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 migration and harnessing its potential for development. FAO, Rome
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
Sa´nchez Herna´ndez A (2002) El derecho agrario en Espa~
na prespectiva histo´rica y prospectiva. In:
Francisco Yagüe L, Herrera Campos R (eds) Agricultura ante el tercero milenio. Dikynson,
Madrid, pp 1107–1138
Schneider S (2009) What is agricultural law? Agricultural law update. />abstract¼1331422. 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


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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

Zeledo´n Zeledo´n R (2015) Derecho Agrario Contempora´neo. Editorial Investigationes Juridicas S.
A, San Jose

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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
Elisa Morgera and Andrea Saba

1 Introduction1
What is the role of law in nurturing sustainable development? And more specifically, what is the role of law to support sustainable agricultural production, as well
as agricultural research and development practices, that can contribute to environmental sustainability and the realisation of the right to food? All the chapters in this
section address these complex questions and serve to point out to the different
approaches and areas that the law can focus on. All the chapters also discuss, to
different extents, the progress achieved in EU law, through the Common Agricultural Policy, whose successive waves of legislation have allowed learning by doing
but also continued to fuel dissatisfaction. These timely contributions therefore
underscore the need for legal analysis on how to effectively frame agrienvironmental approaches while encouraging and/or rewarding farmers for their
contribution to environmental sustainability and food security.
In this connection, it seems timely to reflect on the role of the Convention on
Biological Diversity (CBD)2 and of the guidance adopted by its 196 Parties in
December 2016 on mainstreaming biodiversity in the agricultural sector3 in order to

inspire further legal research in this area. The CBD guidance calls for promoting
and supporting sustainable agricultural production through the enhanced use of a
1

This section is written by Elisa Morgera.
Convention on Biological Diversity (CBD) 1992, 1760 UNTS 79.
3
CBD Decision XIII/3 (2016).
2

E. Morgera (*)
University of Strathclyde, Glasgow, UK
e-mail:
A. Saba
DIRPOLIS - Institute of Law, Politics and Development, Scuola Superiore Sant’Anna, Pisa, Italy
e-mail:
© 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_2

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E. Morgera and A. Saba

diverse range of well-adapted crops and livestock, and their varieties and breeds,

and of associated biodiversity in agricultural systems, including pest-control organisms and soil organisms that promote nutrient cycling, thereby reducing or
replacing the need for chemical inputs. It further recommends promoting and
supporting the development, transfer and use of technological innovation to help
reduce the negative impacts of agriculture and the integrated, efficient and sustainable management of energy, water and soil resources. It also encourages reducing
loss and waste at all stages of production and consumption in the food system,
including reducing post-harvest losses, maintaining genetic diversity of resources
for food and agriculture and their landraces and wild relatives, as well as supporting
the conservation and sustainable use of pollinators,4 including through pesticide
risk reduction strategies and risk assessment procedures for pesticides and living
modified organisms. The recent CBD guidance therefore provides a wide-ranging
set of standards against which to assess the comprehensiveness and ambition of
regional and national legal frameworks for sustainable agriculture.
Furthermore, the CBD guidance on mainstreaming biodiversity in the agricultural sector is noteworthy from a human rights perspective, even if it shies away
from adopting explicit human rights language. It makes reference to the promotion
of an ‘equitable and participatory approach to the management and restoration of
critical ecosystems’ and the recognition of traditional knowledge and cosmovisions
of indigenous peoples and local communities. It also points to the development of
legal frameworks or administrative measures for land use to enhance the conservation and sustainable use of biodiversity while recognising the rights of indigenous
peoples and local communities to lands and resources. It further calls for
recognising the contributions of the collective actions by indigenous peoples and
local communities to biodiversity conservation and sustainable use in the agricultural sector, promoting community and family farming by indigenous peoples and
local communities, and protecting their traditional and established land rights and
tenure. The guidance also indicates the need for prior informed consent and fair and
equitable benefit sharing in relation to the use of the traditional knowledge of
indigenous peoples and local communities for the sustainability of agriculture, as
well as their participation in land-use planning and zoning.5 Another recent decision adopted by the CBD Parties complements these recommendations, calling for
developing incentives for farmers, indigenous peoples and local communities to
protect pollinators and pollinator habitats, for example through benefit-sharing
schemes, including payments for pollinator services schemes, as well as removing
or reducing perverse incentives causing the destruction of pollinator habitats, the

overuse of pesticides and the simplification of agricultural landscapes and production systems.6

4

CBD Decision XIII/15 (2016).
CBD Decision XIII/3 (2016).
6
CBD Decision XIII/15 (2016).
5


Sustainable Agricultural Production, Environmental Sustainability and Food. . .

17

As recommended in the 2030 Agenda on Sustainable Development,7 CBD Parties
have reflected ‘different approaches, visions, models and tools’ to biodiversity conservation and sustainable use in their recommendations on mainstreaming biodiversity in the agricultural sector. These models include both market-based approaches
(notably, certification and natural capital accounting) and non-market-based
approaches (inspired by a vision of living in harmony with nature and reliance on
traditional 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 indigenous
peoples and local communities applicable to farmers in the European continent? And
second, how can the law effectively support a respectful and constructive dialogue
that leaves room for non-mainstream views of nature and sustainable development
and supports the integration of ‘modern’ science and traditional knowledge?8

2 The Structure of the Part9
The goal of pursuing sustainable agriculture has informed the EU Common Agricultural Policy with the aim of supporting long-term productivity, as well as food
security, as Alicia Epstein explores in her paper ‘The Ecological and Perpetual
Dimensions of European Food Security: The Case for Sustainable Agriculture’. In

particular, her contribution assesses EU agri-environmental measures against the
paradigm of sustainable development, thus investigating the extent to which
resulting policies are able to address the multifaceted challenges posed by food
security. The author argues that sustainable agriculture needs to be
re-conceptualised through a rediscovery and prioritisation of an ecological and
perpetual dimension of food security under the EU Common Agricultural Policy.
Within the perspective of sustainable agriculture, ensuring access to plant genetic
resources for food and agriculture plays a key role in tackling food security, climate
change and biodiversity. In her paper on ‘International Law on Plant Genetic
Resources for Food and Agriculture: Towards a New Balance?’ Anna Micara
explores the provisions in bilateral and regional trade agreements concerning intellectual property rights and genetic resource protection with the aim of evaluating the
extent to which such provisions may detrimentally impact access to plant genetic
resources. In this line, the legal framework emerging from bilateral and regional trade
agreements is assessed against other international instruments; in particular, the author
focuses on the potential impact of the draft UN Declaration on the rights of peasants
and other people working in rural areas. Such Declaration may, if adopted, provide a
significant contribution towards a more balanced system, thus strengthening the
human rights nature of the right to seeds and to biological diversity for peasants.

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.

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