International Law and the Right to Food: What We Can Learn from Racial Justice Movements

Until very recently, international law usually dealt with questions of race and racism through two primary mechanisms: denial and containment. On the one hand, the outlawing and criminalisation of the most egregious forms of racial discrimination contributed to the narrative that international law was the polar opposite and even the primary antagonist of racism, which was generally relegated to an irrational past. On the other, international legal doctrines and structures only recognised and addressed racial subordination in so far as it was named and challenged through the idiom of ‘racial discrimination’.

This dual move has profound consequences. First, it locates racism exclusively on the level of the nation-state. Secondly, it negates the possibility that the heart of racism does not lie in this or that discriminatory law or treatment but rather on the way our national and international political economy is structured. From this, it follows that even though some international legal fields have been critiqued for their complicity with racism and the adoption of racialised narratives (international human rights law, international humanitarian law, and notably international criminal law come to mind), others (international trade or investment law being some good examples) remain stubbornly resistant to this critique.

The Black Lives Matter movement as well as other movements striving for racial justice in the US and beyond have been putting pressure on these two postures. First, despite local contingencies and particularities, the proliferation of movements pushing against anti-Black racism as well as the conscious decision of the Black Lives Matter movement to stand in solidarity with the Palestinian people, indicate that racism is not a national particularity, but a transnational structure of exploitation and subordination. Secondly, the demand to abolish, or at the very least defund, the police and redirect these funds to community services, welfare, social work, and mental health support indicate an unwillingness to contend with piecemeal reform and an emphasis on the distribution of material resources as the site where racism is articulated and, therefore, can be contested.

These movements’ call for systemic change continues to inspire our work in international law and the right to food. Questions of food and hunger have been at the centre of the ongoing COVID-19 pandemic. A recent report by the Food and Agriculture Organization has stressed that the pandemic is accelerating the rise of the numbers of those facing hunger and food insecurity. Racialised people will be disproportionately affected by this trend, which will hit hardest the Global South as well as those already facing food insecurity in the Global North.

The links between the right to food, international law and the racialisation of people do not end there. Chinese ‘wet markets’ have been repeatedly blamed for the outbreak, even though the origins of the pathogen remain open to debate. Discussions over China’s international legal responsibility for the outbreak take for granted the idea of the Wuhan wet market as the origin of the pathogen transmission and avoids the underlying issue of how the pandemic reflects a break-down of world food-systems. Branding the food practices of ‘others’ as uniquely savage or cruel has a long and disturbing history, and the discipline of international law has been part of this move. Francisco de Vitoria, often considered a forefather of international human rights and liberal cosmopolitanism, dedicated a surprisingly large part of his oeuvre to distinguishing proper from ‘improper’ food, the latter being invariably consumed by non-Europeans. The conquest of the Americas and Africa was accompanied by horror stories about alleged native cannibalism. More recently, animal rights campaigns against seal-hunting have deemed hunting to be ‘barbaric’, succeeded shutting down international seal markets, and decimated the livelihoods and cultures of the Inuit and other hunting communities in the Arctic.

The emerging disciplinary obsession with China’s potential responsibility not only replicates these patterns of finding certain culinary cultures fundamentally ‘dirty’, ‘unsanitary’ and ‘dangerous’ but also deflects our attention from the ways in which international law structures preclude billions from accessing healthy diets by organizing international political economy in particular ways. Rather, we suggest that in thinking about international law, food and race/ism together we would benefit from an examination of the ways in which political discourse and its accompanying laws and institutions systematically devalue the labour, lands, water, and other natural resources in effect create and entrench the racial categorisation of people. This process takes place through a variety of juridical means. For example, international investment law protects investments regardless of them originating in land-dispossession and openly racist rule, as has been systematically the case in post-colonial states. Furthermore, the language of human rights is frequently co-opted to protect the racialised order of wealth distribution. Both investment and human rights tribunals have condemned Zimbabwe’s land redistribution programs as racially discriminatory because they targeted white farmers without regard to the fact that land was heavily concentrated in the hands of the white minority or to the reality that market-based redistribution had not altered these patterns at all. At the same time, Indigenous rights are often relegated to the realm of culture in ways that do not challenge existing patterns of property allocation and enjoyment. In other words, different international legal fields stabilise and protect particular forms of property, especially those associated with people who have come to understand themselves as being ‘white’.

This skewed international legal order means that not everyone has access of even minimally healthy diets. The COVID-19 pandemic operates as a magnifying glass and accelerator of these inequities. In the US, Black people are disproportionately vulnerable to the virus. Even though they are 13.4 percent of the US population, they make up 34 percent of COVID deaths. The Center for Disease Control and Prevention (CDC) has found that Black people account for 33 percent of COVID hospitalizations. Black communities have high rates of obesity, hypertension, and obesity stemming from long-standing poverty and food insecurity. These chronic health condition weaken the immune system and make people more vulnerable to the virus. Being Black in the US is, in effect, a deadly ‘pre-existing medical condition’. More broadly, both in the Global North and in the Global South racialised people produce, pack, and cook the food we eat, while at the same time being vulnerable to food insecurity and hunger.

Even though national laws and institutions bear responsibility for these inequities, international law is not blameless either. For far too long, the United Nations, the international financial institutions, and even the Food and Agricultural Organization have framed the issue of food as a problem of hunger/food insecurity that can be solved through better research, technologies and policies. This has been a narrow and political particular framing in several ways. First, until recently, hunger has been measured in terms of sufficient caloric intake without consideration to significant variance in daily activity or a healthy diet. Second, the notion of who controls key aspects of the food system has been ignored. As FAO acknowledged in July 2020, this approach led to the adoption of measures that promoted the interests of transnational corporations that could provide calorie-packed and unhealthy food in very low prices. The predictable consequence of this trend has been the immiseration of farmers, especially in the South. The language of ‘food security’ has had similar effects, privileging of elite knowledge and expertise and the depoliticisation of debates about food. More broadly, the ‘hungry’ and the ‘food insecure’ have been conceptualised as populations to be governed and protected, as the objects of international authority rather than the active authors of the decisions that shape our food chains. As Pahuja has noted in the highly relevant context of development, this move has re-inscribed racial difference in international law through a more palatable language.

The concrete legal history of the right to food points at a very different direction. Food is just not a problem to be solved, but is also a way for people to come together and a way of relating with non-human animals, the soil, and the changing seasons.  People in Black communities in places like Detroit, Michigan and Jackson, Mississippi are working together to build local, self-reliant food systems. Internationally, small-scale food producers and labor unions have jointly responded to the pandemic by calling for a fairer and healthier food system. Even with all this solidarity, the pandemic still makes it very difficult to plan for the future. What remains clear, however, is that any long-term solution to global hunger must place justice at its core.