Academic Year
2018/2019Phd Course
Politics, Human Rights and Sustainability
Author
Lucia Polackova
Supervisor
Mariagrazia Alabrese
EXPLORING THE NEXUS BETWEEN THE
RIGHT TO FOOD AND FOOD WASTAGE
i TABLE OF CONTENTS
ABSTRACT ... vi
CHAPTER 1. INTRODUCTORY REMARKS ... 1
1. Outlining the purpose of the dissertation and the research question ... 1
2. Methodology ... 4
3. Research limitations ... 7
4. The structure of the dissertation ... 8
CHAPTER 2. THE PARADOX OF FOOD WASTAGE: SETTING THE SCENE ... 13
1. The current state of the public debate on food wastage ... 13
1.1 From the historical origins of the debate on food wastage to the state of play ... 13
2. Facts and figures about food losses and food waste ... 15
2.1 The paradox of global food wastage and hunger: What outlook for the future? ... 15
2.2 Reducing food wastage to ensure long-term food security ... 17
3. The need for a legal definition of ‘food losses’, ‘food waste’ and ‘food wastage’ ... 19
3.1 A review of the existing definitional framework ... 19
3.1.1 Gaps, general confusion over terminology and open questions ... 19
3.1.2 Terms and notions related to food wastage ... 20
3.1.2.1 Defining food wastage on the basis of three criteria: (i) the food supply chain, (ii) the intention to discard and (iii) the residual criterion ... 20
3.1.2.2 The meaning of the terms ‘food losses’, ‘food waste’ and ‘food wastage’ ... 24
3.1.2.2.1 What does the term ‘food losses’ mean? ... 24
3.1.2.2.2 What is understood by the term ‘food waste’? ... 27
3.1.2.2.3 What is the meaning of the term ‘food wastage’/‘food losses and waste’? ... 31
3.1.2.2.4 Analysis of the definitions of ‘food losses’, ‘food waste’ and ‘food wastage’ on the basis of the food-focused and waste-focused approaches ... 33
3.1.2.2.5 Any way forward? ... 35
3.1.3 Unanswered questions and underestimated issues concerning food losses, food waste and food wastage ... 36
3.1.3.1 What is food? ... 36
3.1.3.1.1 Definition of food at the international level ... 36
3.1.3.1.2 Definition of food at the EU level ... 37
3.1.3.1.3 Fitness for human consumption ... 47
3.1.3.1.3.1 Fitness for human consumption under the right to food ... 48
3.1.3.1.3.2 Food safety under EU law ... 49
ii
3.1.3.2.1 Application of the concept of food supply chain to the issue of food wastage ... 53
3.1.3.3 The notion of ‘removed from’ ... 57
3.1.3.4 The term ‘loss’ ... 57
3.1.3.5 ‘Discard’ vs. ‘waste’ ... 58
3.2 Which definition fits best in the right to food context? ... 67
CHAPTER 3. CONTEXTUALIZING FOOD WASTAGE IN THE FRAMEWORK OF THE RIGHT TO FOOD ... 70
PART I. THE ROOTS OF THE NEXUS BETWEEN THE RIGHT TO FOOD AND FOOD WASTAGE ... 70
1. The right to food and food wastage in international legal instruments: The UN Charter, the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights ... 70
2. Codification of the right to food at the regional level: Africa, Americas, Europe and Asia ... 73
3. The right to food and food wastage in soft law instruments ... 75
3.1 The declarations of world summits and pertinent plans of action ... 77
3.2 The UN General Assembly resolutions ... 80
3.3 The General Comment No. 12 and the Voluntary guidelines on the right to food ... 82
3.4 The Global Strategic Framework for Food Security and Nutrition and final reports adopted by the Committee on World Food Security and the FAO’s Strategic Framework ... 83
3.5 The UN Millennium Declaration and the 2030 Agenda for Sustainable Development .... 87
3.6 The Zero Hunger Challenge ... 90
3.7 The Milan Charter ... 92
PART II. DOES FOOD WASTAGE VIOLATE THE RIGHT TO FOOD? ... 93
1. Definition of the right to food ... 93
1.1 The content of the right to food: The right to adequate food vs. the right to be free from hunger.. ... 96
2. The nexus between the pillars of the right to food and food wastage ... 98
2.1 Food wastage in the context of food availability ... 98
2.2 Food wastage in the context of food accessibility ... 104
2.2.1 The impact of food wastage on food accessibility through food prices and financial losses…… ... 105
2.2.2 Philosophical thoughts on poverty and hunger: Why do higher food prices brought about by food wastage and a failure to sell produce matter to consumers and smallholders? .... 109
2.3 Food wastage in the context of food adequacy ... 114
CHAPTER 4. OBLIGATIONS STEMMING FROM THE RIGHT TO FOOD: WHAT IMPLICATIONS FOR FOOD WASTAGE REDUCTION? ... 119
iii PART I. THE OBLIGATION TO TAKE STEPS: DOES THE OBLIGATION TO TAKE STEPS SO AS TO PROGRESSIVELY ACHIEVE THE FULL REALIZATION OF THE RIGHT TO
FOOD IMPLY AN OBLIGATION TO TACKLE FOOD WASTAGE? ... 120
1. The legal background: Exploring the normative content of Article 2(1) ... 121
2. Applying of Article 2(1) of the International Covenant in the context of the right to food and food wastage reduction ... 126
2.1 The implications of the obligation to take steps to fully realize the right to food by all appropriate means for food wastage reduction ... 126
2.2 The implications of financial resources limitations for food wastage reduction ... 129
2.3 The implications of the obligation to cooperate with other States in the implementation of the right to food for food wastage reduction: How can the ICESCR be interpreted in the light of the acts adopted by States in the occasion of world summits and within international organisations? ... 132
2.3.1 Interpreting the outcome documents of global summits into the ICESCR... 133
2.3.1.1 Interpretation of the ICESCR pursuant to Article 31(2) of the Vienna Convention ... 134
2.3.1.2 Interpretation of the ICESCR pursuant to Article 31(3) of the Vienna Convention ... 138
2.3.2 Interpreting the acts adopted by States within international organizations into the ICESCR… ... 144
2.4 The implications of the obligation to take steps to progressively realize the right to food for food wastage reduction ... 151
2.4.1 Progressive realization vs. minimum core obligations ... 152
2.4.2 The implications of regional interpretation of the minimum core obligation related to the right to food for the obligation to tackle food wastage ... 158
2.5 Conclusions ... 161
PART II. SHAPING THE SPECIFIC RIGHT-TO-FOOD OBLIGATIONS IN THE CONTEXT OF FOOD WASTAGE... 163
1. What should States do about food wastage in order to comply with their obligation to respect the right to food of everyone? ... 163
1.1 Wasting ugly fruits and vegetables and the obligation to respect the right to food: A case study…. ... 165
1.1.1 General rules applicable to the EU marketing standards ... 166
1.1.2 The normative content of the general marketing standard ... 170
1.1.3 The normative content of the specific marketing standards ... 173
1.1.4 Does the EU legislation clash with the obligation to respect the right to food? ... 174
1.1.5 The responsibility of States for the contents of the Commission Implementing Regulation 543/2011: The implications of the obligation to respect the right to food ... 176
1.1.6 Desirable actions complying with the obligation to respect the right to food ... 181
iv 2. What should States do about food wastage in order to comply with their obligation to protect the right to food of everyone? ... 183
2.1 Food wastage in supermarkets and the obligation to protect the right to food in the French Law No. 138/2016 of 11 February 2016: A case study ... 189 2.1.1 Putting the Law 138/2016 in the context of the ‘Pacte national de lutte contre le
gaspillage alimentaire’... 190 2.1.2 The ‘Pacte’ within the National Food Programme and the national food policy: On the track of the right to food ... 192 2.1.3 The normative content of the French Law 138/2016: How does it protect the right to food?... ... 195 2.1.4 Gaps and conclusions ... 203 3. What should States do about food wastage in order to comply with their obligation to fulfil the right to food? ... 206
3.1 The implications of the obligation to fulfil-provide for food wastage ... 207 3.2 The implications of the obligation to fulfil-facilitate for food wastage ... 208 3.2.1 The many shades of the right to food in the Italian Law No. 166/2016 of 19 August 2016: A case study ... 210 3.2.1.1 The right to food in the Italian Constitution ... 211 3.2.1.2 Food wastage reduction in the National Food Waste Prevention Plan and the
relationship with the National Waste Prevention Plan: A pathway to Law 166/2016 ... 213 3.2.1.3 Italian Law 166/2016: On the track of the obligation to fulfil the right to food ... 219 3.2.1.4 Gaps and conclusions: A virtuous model to follow? ... 231 CHAPTER 5. FINDINGS: ENCAPSULATING THE NEXUS BETWEEN THE RIGHT TO FOOD AND FOOD WASTAGE ... 234 1. Concluding remarks on the definitional framework of food wastage ... 236 2. Final reflections on the roots of the nexus between the right to food and food wastage ... 239 3. Closing observations on the relationship between food wastage and the pillars of the right to food.. ... 242 4. Final thoughts on the existence of the States’ obligation to tackle food wastage as deriving from the right to food ... 245 5. Summarizing the implications of the obligations to respect, protect and fulfil the right to food in the context of food wastage reduction ... 248 6. Open questions ... 254 INDEX OF AUTHORITIES ... I INTERNATIONAL TREATIES ... I UN DOCUMENTS ... II EU LEGISLATION ... X
v EU DOCUMENTS ... XII NATIONAL LEGISLATION ... XIV JUDICIAL DECISIONS ... XVI African Commission on Human and Peoples’ Rights ... XVI Court of Justice of the European Union ... XVI European Court of Human Rights ... XVII Inter-American Commission on Human Rights ... XVII Inter-American Court of Human Rights ... XVII International Court of Justice ... XVIII Permanent Court of International Justice ... XVIII Domestic Courts ... XVIII DIGESTS, BOOKS AND COMMENTARIES ... XIX ARTICLES ... XXII NEWS ARTICLES... XXVII MISCELLANEOUS ... XXVIII TABLES ...XXXVI
TABLE 1. ICESCR RATIFICATIONS VS. ATTENDANCE AT WORLD FOOD SUMMITS ...XXXVI
vi ABSTRACT
Curbing food wastage is one of the biggest challenges that the world faces today, considering the imperative to feed the growing global population and the scarcity and overexploitation of natural resources used for food production. For this reason, the purpose of this PhD dissertation is to explore the nexus between food wastage and the right to food, which represents an under-researched area in legal scholarly writings. The interplay between these two issues will be examined at five levels. Firstly, the definitional framework of food wastage will be analyzed in depth with a view to outlining a definition of this phenomenon applicable in the context of the right to food. Having determined what exactly food wastage means, the second step will be to investigate whether and how this issue is linked to the right to food in the commitments undertook by States in legally binding instruments at international and regional levels as well as in soft law instruments adopted at world summits addressing food security and within international organizations. Thirdly, the examination of the nexus between food wastage and the right to food will proceed by a combined legal and philosophical analysis of whether food wastage violates the right to food by undermining its three pillars, namely food availability, food accessibility and food adequacy. Subsequently, the obligation to tackle food wastage will be derived from the obligation to take steps with a view to the progressive realization of the right to food and the core obligation to alleviate and mitigate hunger. Finally, the investigation of the nexus between food wastage and the right to food will conclude with the scrutiny of how the obligations to respect, protect and fulfil the right to food can be shaped in relation to food wastage reduction, illustrated by three case studies concerning the EU marketing standards for fresh fruit and vegetables, the French Law
138/2016 and the Italian Law 166/2016 on the fight against food wastage.
1 CHAPTER 1. INTRODUCTORY REMARKS
1. Outlining the purpose of the dissertation and the research question
The purpose of this dissertation is to investigate the nexus between the phenomenon of food wastage and the right to food with a view to ascertaining whether this right is violated by this phenomenon and whether it implies any obligation for States to act in this regard and how the duties stemming from this right can be shaped in the context of food wastage reduction. The reason behind the choice of this topic is principally that so far this issue has been overlooked by scholarly legal writings and it thus represents a challenge not only at the academic level but also for policy-makers and public debate.
Indeed, one of the greatest challenges of the 21st century is to safeguard sustainable food for the future generations. In today’s world where about 815 million people still suffer from hunger,1 roughly one third of all food produced globally each year for human consumption is wasted or lost between the farm and the fork.2 This paradox is likely to be even more pronounced with the world’s population reaching 9.1 billion by 2050,3 challenging the capacity of the agricultural sector to feed the growing number of people living on the Planet Earth. According to the FAO, in order to respond to the needs of this larger population, food production will have to increase by 50 percent by 2050 as against the quantity of food produced in 2012.4 However, numerous experts and scholars refuse the idea of merely boosting food production, since a sufficient amount of food has already been produced to feed the existing and the future population.5 Instead, the reduction of food wastage has been tabled as one of the measures to ensure long-term food security in a sustainable manner. According
1 FAO, IFAD, UNICEF, WFP and WHO, 2017, The State of Food Security and Nutrition in the World 2017:
Building resilience for peace and food security, pp. 5, 6 [FAO, IFAD, UNICEF, WFP and WHO, 2017].
2 Gustavsson et al., 2011, Global food losses and food waste – Extent, causes and prevention, p. 4 [Gustavsson et
al., 2011].
3 FAO, 2017a, The Future of Food and Agriculture: Trends and Challenges, p. 12 [FAO, 2017a]. 4 Ibid, p. 46.
5 Alexandratos and Bruinsma, 2012, World Agriculture Towards 2030/2050: The 2012 Revision, p. 1
[Alexandratos and Bruinsma, 2012]; UN General Assembly, 2015c, Interim report of the Special Rapporteur on
the right to food, Hilal Elver: Impact of climate change on the right to food, para. 83 [UN General Assembly,
2015c]; Gjerris, Gaiani, 2015, ‘Values in the trash: ethical aspects of food waste’, p. 60 [Gjerris, Gaiani, 2015]; Giovanucci et al., 2012, Food and Agriculture: The future of sustainability. Report produced under the
Sustainable Development for the 21st Century (SD21) project, p. 5 [Giovanucci et al., 2012]; Lundqvist et al.,
2008, Saving Water: From Field to Fork – Curbing Losses and Wastage in the Food Chain, p. 4 [Lundqvist, 2008]; Smil, 2016, ‘Food waste’, p. 25 [Smil, 2016].
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to the estimates carried out by Lipinski, halving the current rate of food losses and waste by 2050 would reduce the gap between the food available today and that necessary in 2050 by 22 per cent.6
The paradoxical situation of food being wasted while many go to bed hungry every day is exacerbated by the fact that the world’s natural resources are being overstretched in an unsustainable manner to produce food which is never eaten. More specifically, extensive areas of land are occupied by food which ends up in the bin, huge volumes of water are wasted to grow food which is never consumed by human beings and a tremendous quantity of unnecessary greenhouse gases is released into the atmosphere by food which never reaches the consumer or is thrown away, thus reducing food availability and undermining the possibilities of future food production necessary to feed the generations to come. Not to mention that the more food is wasted, the higher are food prices and consequently the more difficult it is for consumers to access food. Similarly, farmers struggle with earning for their livelihoods owing to lower revenues caused by food wastage, especially in the field. Therefore, at the macro-level, food wastage is responsible for pushing more people below the poverty line. Moreover, even the adequacy of food is undermined by food wastage due to the fact that the largest portion of wasted and lost food comes from fresh produce such as fruit, vegetables, tubers, pulses and cereals with a high nutritional value, which boosts their prices and leads consumers to buy cheaper industrially processed food with lower nutritional values.7
Since, according to the General Comment No. 12, the right to food is realized “when every man, woman and child, alone or in community with others, have physical and economic access at all times to adequate food or means for its procurement”,8 it is undeniable that, in the context of limited natural resources, food wastage compromises the enjoyment of right to food as established by Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). This gives rise to the necessity to examine in depth the nexus between the phenomenon of food wastage and the right to food.
6 Lipinski et al., 2013, Reducing Food Loss and Waste, Working Paper, p. 2 [Lipinski et al., 2013].
7 Monteiro, 2009, ‘Nutrition and health. The issue is not food, nor nutrients, so much as processing’, pp. 730,
731 [Monteiro, 2009].
8 UN Committee on Economic, Social and Cultural Rights, 1999, General Comment No. 12: The Right to
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The principal research question which the dissertation seeks to explore has been framed as follows: What is the nexus between the right to food and food wastage? In order to provide a reasonable and valid answer to this question, five aspects must be clarified.
First of all, it is essential to elucidate the meaning of the term ‘food wastage’ and other related expressions such as ‘food losses’ and ‘food waste’ from the legal point of view and in the context of the right to food.
Secondly, it is crucial to clarify the scope of this right and to dig deep in the past in order to search for both explicit and hinted indications on the relationship between this right and the phenomenon of food wastage.
Thirdly, it is equally important to understand whether and how food wastage affects the availability, accessibility and adequacy pillars of the right to food.
Fourthly, the three analyses referred to in the previous paragraph will form a solid cornerstone of the investigation of whether States are obliged to act against food wastage in order to ensure the full enjoyment of the right to food for all. In particular, the obligation to take steps to achieve the progressive realization of the right to food consistently with Article 2 of the ICESCR will be scrutinized. The purpose of this analysis will be to ascertain whether it implies any obligation for States in relation to food wastage. It will also be disputed whether States satisfy this minimum essential level of the right to food when there are still hungry and poor people under their jurisdiction who cannot afford to buy adequate food, while at the same time food is being lost and wasted.
Fifthly, the three obligations imposed by the right to food – to respect, to protect and to fulfil – will be explored in the context of food wastage reduction. With regard to the obligation to respect, it will be analyzed whether States can actively engage in policies which contribute to food wastage that undermines the right to food, such as, for instance, by enacting laws which ban the sale of food products after the expiration of the best-before date or impose rigorous cosmetic standards for fresh produce. The latter example will be examined in detail in a case-study accompanying the analysis of the obligation to respect. In relation to the obligation to protect, it will be examined whether this duty prevents States from allowing non-state actors to discard unmarketable but still edible food. This obligation will be illustrated by a specific case study on the recent French Law No. 138/2016 of February 2016, which imposes the donation of unsold food products which would have been otherwise
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wasted by supermarkets. As far as the obligation to fulfil-provide is concerned, the role of food banks cannot be overlooked. Finally, with regard to the obligation to fulfil-facilitate, the States should promote policies and create an enabling framework where the right to food can be enjoyed by every individual. It will be scrutinized how the choice to tackle food wastage is shaped by this duty, such as entailing, inter alia, the development of uniform methodology for food wastage quantification, setting reduction targets, development and implementation of policies and laws aimed at food wastage reduction and prevention, building infrastructure, provision of incentives for food donations to food business operators along the food supply chain, facilitation of conformity checks at the borders and so on. For example, as examined in a case-study, the Italian Law No. 166/2016 of 19 August 2016 establishes, in the spirit of solidarity and implicitly referring to the right to food, several incentives for donation of unsold food to poor people.
2. Methodology
Having outlined the purpose of the dissertation and the research question, it is essential to identify the individual steps and methods necessary for answering the research question. The author opted for qualitative methodology which perfectly reflects the legal nature of the thesis, selecting three methods employed throughout the dissertation: the legal analysis, the right-to-food approach and the interdisciplinary scrutiny.
With regard to the legal analysis, the author scrutinized and interpreted various normative sources such as international treaties and soft law instruments relevant to the right to food, the EU primary and secondary legislation as well as national laws, in particular the recently adopted French and Italian laws on the fight against food wastage. The soft law sources comprise acts adopted and reports issued by international organizations (especially by the FAO and the UN General Assembly) in relation to food wastage and the right to food and scholarly legal writings addressing these two issues. The arguments put forward during the legal analysis and interpretation of these documents are supported by international and regional case-law.
A significant part of the legal analysis was carried out during the six-months’ research period in London at the International Institute for Environment and Development (IIED) with the Natural Resources Group from autumn 2016 to spring 2017. An in-depth legal analysis of various international treaties concerning or related to the right to food was performed, with
5
particular focus on the Convention on Biodiversity, the International Treaty on Plant Genetic Resources for Food, the United Nations Framework Convention on Climate Change, the Paris Agreement, Article 11 of the International Convention on Economic, Social and Cultural Rights, the work and reports of the Special Rapporteur on the right to food as well as of the Committee on World Food Security. Only some of these legal instruments were evaluated as relevant to the thesis and further examined upon the author’s return in Italy.
It is also essential to underline that the legal analysis focuses on two issues. First of all, it aims at decomposing the terms food wastage, food waste and food losses in order to determine their scope. Secondly, the analysis concentrates on deriving State obligations from the right to food in relation to food wastage. A question arises as to why the dissertation focuses on States and does not take into account other entities. The reasons behind the focus on States are numerous. First of all, considering that the dissertation addresses the nexus between food wastage and the right to food from the perspective of human rights obligations, as explained below, the focus is placed on the role of States due to the fact that human rights are exercisable mainly against these subjects of international law.9 It cannot be denied that multinational companies actively engage in enhancing human rights10 and, at the same time, are increasingly being held responsible for human rights violations and are also significantly involved in food wastage generation. Likewise, the important role of international organizations and NGOs in the promotion of human rights and food wastage reduction must be recognized.11 Nevertheless, it is the State which bears the primary responsibility for respecting, protecting and fulfilling human rights in general, including the right to food. Moreover, the role of the State in food wastage reduction remains rather unexplored and is therefore worth an in-depth analysis.
9 UN Commission on Human Rights, 2003, The Right to food: Report submitted by the Special Rapporteur on
the right to food, Jean Ziegler, in accordance with Commission on Human Rights resolution 2002/25, para. 26
[UN Commission on Human Rights, 2003].
10 UN Committee on Economic, Social and Cultural Rights, 2011, Statement on the obligations of States parties
regarding the corporate sector and economic, social and cultural rights, para. 1 [UN Committee on Economic,
Social and Cultural Rights, 2011].
11 Ssenyonjo, 2009, Economic, Social and Cultural Rights in International Law, pp. 21, 107, 108 [Ssenyonjo,
2009].
Multinational corporations and NGOs qualify as non-state actors which were defined by the African Commission on Human and Peoples’ Rights as covering “individuals, organisations, institutions and other bodies acting outside the State and its organs” (Communication 245/2002, Zimbabwe Human Rights NGO Forum v.
Zimbabwe (2006), 15 May 2006, para. 136). However, Ssenyonjo amplified the scope of this term to
international organisations in general and “other relevant bodies within the UN system” as well (Ssenyonjo, 2009, p. 109).
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One final note must be made on the legal analysis - it is not restricted to documents of legal relevance. On the contrary, it is complemented by the scrutiny of publications in the field of political philosophy which support the legal reasoning behind the nexus between food wastage and the right to food. This element brings us to the second method used in researching on the topic at hand and drafting the dissertation – the interdisciplinarity.
Without a shadow of a doubt, the interdisciplinary analysis of the research question represents an important methodological instrument. However, it can be a tricky tool, considering that it has a propensity for exposing any written work to inconsistency, incoherence and general confusion. Bearing this tangible risk in mind, the author of this dissertation sought to combine three disciplines in the most natural way possible in order to avoid abrupt leaps from one section to another and to ensure a smooth logical thread which is easy to follow. The disciplines selected by the author are agri-food law, international law and political philosophy, which reflect the three possible paths offered by the PhD Programme in Politics, Human Rights and Sustainability. With regard to agri-food law, it can be regarded as the cornerstone discipline, dealing with the subject of the dissertation, i.e. with food wastage and food and agriculture laws and policies. This discipline is complemented by international law. More specifically, international human rights law is reflected in the right-to-food analysis of the issue of food wastage, whereas international treaty law is used to test the existence of any obligation for States to tackle food wastage stemming from the right to food as enshrined in Article 11 of the International Covenant. Finally, the political philosophy thoughts of Stuart and Locke contribute to the clarification of the historical context of the emergence of food wastage in Chapter 2, while the Sen’s famous essay on poverty and famines helps to better grasp how food wastage violates the right to food in Chapter 3. The unique combination of these three disciplines in appropriate doses and well organized throughout the individual chapters gives an added value to the dissertation.
Finally, the third methodological instrument selected by the author of the dissertation is the right-to-food approach which permeates every single chapter. This approach consists in theorizing about how food wastage affects the right to food and how can the normative content of this right be shaped in the context of food wastage. This phenomenon remains a
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neglected element of the achievement of the realization of the right to food,12 which represents an efficient theoretical tool for examining the failures within the food system,13 including the analysis of the impact of legislation, policies and practices generating food wastage on global and local food security and on the access to food by the poor segments of the society.
3. Research limitations
In order to ensure consistency and coherence of the logical thread developed in the dissertation, the thesis faces several limitations, both methodological and substantive. As far as methodological limitations are concerned, the research carried out within the framework of this thesis is restricted to qualitative methods. Quantitative methods were not employed for two reasons. First, legal research generally places more focus on the quality, such as definitions, the scope of obligations and normative content of human rights and legal instruments, rather than on the quantity of legally binding norms adopted.14 Second, the purpose of the thesis is not to assess the impact of the existence of the obligation to curb food wastage on the actual reduction of the quantity of food wastage – the author is not equipped with knowledge and instruments necessary to carry out such a study, which would in any case be inconsistent with the objectives of the dissertation.
With regard to substantive limitations, the dissertation focuses primarily on the legal aspects related to food wastage and the right to food. However, a few philosophical thoughts relevant to these two issues are made in order to satisfy the requirement of interdisciplinarity. A brief outline of the economic aspects related to food wastage is restricted to understanding the relationship between food supply, demand and prices in order to support the argument that food wastage undermines food accessibility. Furthermore, the final part of the dissertation contains three case-studies which represent mere examples of how the right to food obligations (to respect, to protect and to fulfil) can be shaped with a view to food wastage
12 Telesetsky, 2014, ‘Waste not, want not: the right to food, food waste and the sustainable development goals’,
p. 480 [Telesetsky, 2014].
13 Lambek, 2015, ‘The right to food: reflecting on the past and future possibilities - Synthesis paper’, p. 71
[Lambek, 2015].
14 The number of States involved is relevant in international law when the customary nature of a given rule of
law is assessed. Indeed, the more States express their opinion in favour of a certain rule, the stronger is the element of state practice and opinio juris. However, the numeric value alone is insufficient, as in order for a rule of law to become a custom, the States in favour must be those most concerned with the issue at hand.
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reduction and must not be considered as the only measures aimed at the realization of the right to food.
4. The structure of the dissertation
Having outlined the purpose of the dissertation, the research question, the methodological approach aimed at providing a valid answer and the limitations restricting the scope of the thesis, it is necessary to briefly outline the structure of the dissertation and to sum up the objectives of each chapter and the means by which they will be achieved. The dissertation consists of five chapters.
The first chapter aims to introduce the principal research question examined in the dissertation, to describe the methods employed in research, with a particular focus on interdisciplinarity, to point outthe limitations faced during the research and to outline the structure of the thesis.
The purpose of the second chapter is to provide an overview of the phenomenon of food wastage in three inter-related sections. In the first section, the historical origins of food wastage are framed in the philosophical thoughts of Stuart and Locke. The second section deals with the paradox of food wastage in the context of global hunger by providing state-of-the-art information about how much food is wasted, how much people still suffer from hunger and what are the options for feeding the growing population considering the natural resources scarcity. It also aims to clarify the role of food wastage reduction in ensuring global food security instead of merely boosting food production. The third section represents the core of Chapter 2 as it provides the cornerstone on which the following chapters are build by focusing on the lexical clarification of the terms that are crucial to the dissertation in order to ensure their accuracy in the legal context. Thus the initial part of this section reviews the definitions of ‘food wastage’, ‘food loss’ and ‘food waste’ both in the legal and non-legal literature (of agronomic, engineering, technical, sociological and economic nature) as well as in several policy documents and legally binding instruments, with the purpose of identifying common elements and approaches taken to define this phenomenon. Subsequently, these three terms are decomposed and their definitional framework is critically analyzed with the aim of drawing up a technical glossary which clarifies and determines the scope of food wastage. The final part tailors a legal definition of food wastage, food waste and food losses fitting in the context of the right to food on the basis of the analysis carried out previously. Such a legal
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definition is of great importance since the message that it conveys may be converted into legally binding rules or constitute the object of legal obligations.
Divided into two parts, the third chapter illustrates the notion of food wastage, as defined in the second chapter, in the context of the right to food. The scope of Part I is to explore the roots of the nexus between the right to food and food wastage by identifying any references, whether explicit or implicit, to food wastage in international and regional legally binding instruments, namely human rights treaties, as well as soft law documents, including human rights declarations, resolutions of international organizations, guidelines and reports drafted by such organizations, which reaffirm, recognize or further elaborate the right to food. The first step of this analysis is the identification of relevant legally (non-)binding instruments at the international and regional levels which enshrine or refer, directly or indirectly, to the right of everyone to food, followed by the scrutiny of their content with the purpose of understanding how the right to food is shaped therein. The last step is to interpret the content of this right with the aim of ascertaining whether and how it is related to food wastage. This process is repeated for each document under analysis.
Part II aims to complement the first one by providing a substantive analysis of the right
to food and its three pillars – food availability, food accessibility and food adequacy – with a view to identifying whether and how food wastage violates this right. The purpose of the initial section of this part will be to define the right to food in such a way that enables to analyze its normative content in the second section. The scrutiny of the normative content of the right to food will briefly explain the distinction between the fundamental right to be free from hunger and the right to adequate food. Subsequently, food wastage will be contextualized in the framework of the aforementioned pillars of the right to food with the purpose of ascertaining whether and to what extent food wastage violates the right to food. With regard to food availability, it will be ascertained whether this pillar is undermined by food wastage by means of a scrutiny, supported by non-legal literature, of how food wastage influences the quantity of food that is available for human consumption from the perspective of the concepts of edibility and sustainability. The analysis of the latter notion will focus on the footprint that food wastage leaves on the environment. As far as food accessibility is concerned, the negative repercussions of food wastage on the access to food by consumers and smallholders will be scrutinized in two steps: firstly, the relationship between food wastage and food prices as well as financial losses will be reviewed, and secondly, Sen’s
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philosophical thoughts on poverty and hunger will be applied to the context of food wastage and food accessibility. Finally, the particular nature of the relationship between this pillar and food wastage will be examined by briefly outlining how food wastage influences food adequacy, in particular the nutritional quality of food, and by scrutinizing the impacts of food safety and cultural acceptability on the generation of food wastage.
Building on the outcome of the third chapter, the scope of the fourth chapter will be to ascertain whether and to what extent States are obliged, under the right to food as enshrined in Article 11 of the ICESCR, to tackle food wastage. This scrutiny will be performed at two levels. The purpose of Part I will be to outline the content of the general obligation to take steps, individually or through international cooperation, by all appropriate means and to the maximum of resources at the State’s disposal, with a view to the progressive realization of the right to food, as laid down in Article 2(1) of the ICESCR. Subsequently, this obligation will be tested in the context of food wastage with the aim of finding whether the States parties to the ICESCR are under the duty to tackle this issue. A particular focus will be put on the core obligation of States to take action necessary to mitigate and alleviate hunger, as established in Article 11(2) of the ICESCR. More specifically, it will be disputed whether States satisfy the minimum essential level of food when there are still hungry and poor individuals under their jurisdiction who cannot afford to buy adequate food, while at the same time food is being lost and wasted. The analysis of the duty to take steps and the core obligation will be carried out on the basis of treaty interpretation consistently with the Vienna Convention on the Law of
Treaties, in the light of the legally (non-)binding documents scrutinized in the third chapter
and supported by relevant international and regional case-law.
Part II of the fourth chapter, divided into three sections, will explore the content of the
specific obligations related to the right to food, namely the duties to respect, protect and fulfil. In the first section, the obligation to respect the right to food will be examined in detail in the context of food wastage. The theoretical analysis will be accompanied by a case study on whether the EU marketing standards for fresh fruit and vegetables comply with the duty to respect. The first step of the case study will be to draw a nexus between food marketing standards and food wastage, followed by a general outline of the EU normative framework applicable in this field, accompanied by the specification of the particular features of the general and specific marketing standards which contribute to the generation of food wastage
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and thus undermine the enjoyment of the right to food. This scrutiny will constitute a solid basis for analyzing whether the EU legislation is consistent with the obligation to respect the right to food, with a particular focus on the role of the EU Member States in complying with this duty. The case study will conclude with an outline of desirable measures to be taken so as to ensure full compliance with the obligation to respect the right to food.
The second section of Part II will analyze how the obligation to protect the right to food can be shaped in the context of food wastage. The theoretical scrutiny will be complemented by a case study on the recently adopted French Law No. 138/2016 on the fight against food wastage (Loi relative à la lutte contre le gaspillage alimentaire). The aim of this case study will be to examine how the obligation to protect the right to food was implemented in relation to food wastage reduction at national level. For this purpose, the first step will be to understand the context in which the French Law was adopted, including the policies addressing food wastage and the extent to which they are permeated by the right to food. Subsequently, the individual provisions of the French Law will be investigated in depth so as to find how France faces the issue of food wastage in the context of the obligation to protect the right to food. The case study will conclude with highlighting the principal gaps of this Law in relation to the realization of the right to food.
Last but not least, the scope of the third section of Part II will be to investigate what the obligation to fulfil the right to food implies in relation to food wastage reduction. This part will consists of two distinct analyses on the basis of the two complementary duties entailed in this obligation – the duty to provide food and the duty to facilitate the enjoyment of the right to food. The purpose of the first scrutiny will be to briefly outline the implications of the obligation to directly provide food to people in need for food wastage reduction. In the second scrutiny, the obligation to facilitate the enjoyment of the right to food will be shaped in the context of food wastage reduction. It will start with a general description of the content of this obligation applied to the framework of food wastage. This brief analysis will be illustrated by a case study on the Italian Law No. 166/2016 (Legge Gadda) aimed at combating food wastage so as to ascertain to what extent it contributes to the fulfilment of the right to food in Italy. For this reason, the contents of the Law will be examined in the context of the policy framework in which it was adopted and against the background of the right to food as recognized in the Italian jurisdiction. A strong emphasis will be placed on how the Italian approach to food donations and other measures aimed at food wastage prevention contribute
12
to the fulfilment of the right to food. The case study will conclude with a critical outline of the shortcomings of this piece of legislation with the aim of determining whether it is a virtuous example to follow.
Finally, the fifth chapter will draw conclusions from the in-depth analysis of the nexus between the right to food and food wastage. Its purpose will be to illustrate the principal findings of each chapter which contributed to answering the research question outlined in the first introductory chapter.
13 CHAPTER 2. THE PARADOX OF FOOD WASTAGE: SETTING THE SCENE
This chapter aims to give a general picture of the issue of food wastage by, firstly, briefly outlining the historical origins of the debate on food losses and food waste deeply rooted in the philosophical doctrine; secondly, reviewing both legal and non-legal literature concerning food wastage, with particular focus on the disclosure of facts and figures about food losses and waste in the context of food security and scarcity of natural resources, and on a detailed analysis of the complex definitional framework of food wastage which has been underestimated in the literature. The chapter will conclude with a proposal for a legal definition of food losses and food waste tailored for the context of the right to food.
1. The current state of the public debate on food wastage
1.1 From the historical origins of the debate on food wastage to the state of play
Despite the fact that the phenomenon of food wastage has been accompanying the human civilisation since the ancient times, it has come into the spotlight of researchers and decision-makers no sooner than during the world wars owing to severe food shortages around the world.15 The public attention to food losses and waste has grown significantly since the 1990s due to factors such as rapidly increasing global population to feed, food insecurity, the scarcity of natural resources and climate change, and has intensified with the 2008 food price crisis and the 2007-2008 global financial crisis.16 This phenomenon can be easily explained by the few well-chosen words of Tristram Stuart, a food waste campaignerof British origins: “when resources are stretched, profligacy appears foolish; when there is abundance, the issue
15 Osborne, 1916, ‘Waste of Food’; Schneider, 2011, The history of food wastage [Schneider, 2011]; Stuart,
2009, Waste: uncovering the global food scandal, p. 71 [Stuart, 2009].
For example, during the war times in the UK, the Ministry of Food issued a propaganda poster: ‘Don’t waste bread! Save two thick slices every day.’ See Imperial War Museum, 1914-1918, ‘Don’t Waste Bread!’.
16 Beretta et al., 2013, ‘Quantifying food losses and the potential for reduction in Switzerland’ [Beretta et al.,
2013]; FAO, 2013a, Food wastage footprint: Impacts on natural resources. Summary Report [FAO, 2013a]; FAO, 2014a, Food wastage footprint full-cost accounting: Final report [FAO, 2014a]; FAO Committee on Agriculture, 2012a, Status of FAO's Work on Post-Harvest Losses, para. 1 [FAO Committee on Agriculture, 2012a]; Gjerris, Gaiani, 2015, p. 55; Gustavsson et al., 2011; HLPE, 2014, Food losses and waste in the context
of sustainable food systems [HLPE, 2014]; Hodges et al., 2010, ‘Postharvest losses and waste in developed and
less-developed countries: opportunities to improve resource use’ [Hodges et al., 2010]; Kummu et al., 2012, ‘Lost food, wasted resources: Global food supply chain losses and their impacts on fresh water, cropland and fertilizer use’ [Kummu et al., 2012]; Lattanzi, 2014, ‘Gli ostacoli di ordine giuridico alla riduzione dello spreco alimentare’ [Lattanzi, 2014]; Lundqvist, 2008; Smith et al., 2014, ‘Agriculture, Forestry and Other Land Use (AFOLU)’ [Smith et al., 2014]; Vaqué, 2015b, ‘Food loss and waste: some short- and medium-term proposals for the European Union’ [Vaqué, 2015b].
14
of waste falls away”.17 Even the prominent philosopher and scholar John Locke put forward the same argument centuries before Stuart, suggesting that who leaves food in his possession to perish loses the right to own it and that squandering food means wasting resources: “If the fruits rotted, or the venison putrefied, before he could spend it, he offended against the common law of nature, and was liable to be punished… if […] the fruit of his planting perished without gathering, and laying up, this part of earth, notwithstanding his enclosure, was still to be looked on as waste, and might be the possession of any other”.18 Locke also affirms a painful truth, which is applicable to today’s world, that wasting food means “depriving people who [need] it most”,19 thereby establishing what is now considered a firm pillar of food security and the right to food.20 Nevertheless, this issue still remains a neglected element of the achievement of the realization of this right.21
Over two hundred studies concerning food wastage have been published and commissioned by international and regional organisations, namely by the United Nations Food and Agriculture Organisation (FAO) and the European Union (EU), as well as by international and national institutions, including governments, research institutes and universities.22 The object of most studies is the quantification of food losses and waste at national or local level and occasionally at global level, the definitional framework of food losses and waste, data collection methodologies, causes, impacts and solutions to food wastage. While the vast majority of papers on the topic of food losses and waste is of non-legal (agronomic, engineering, technical, sociological and economic) nature, a non-legal scrutiny of this phenomenon is rare and recent. Most legal papers and books were published after 2010 and focus on the legal barriers to or solutions of the reduction and prevention of food losses and waste, represented by international, regional, domestic or local legislative instruments and governance.23 However, a gap has been identified in the literature concerning the nexus
17 Stuart, 2009, p. 204.
18 Locke, 1690, ‘Second Treatise of Government’, v. 37-8, 46 [Locke, 1690]. 19 Ibid, v. 37-8, 46.
20 To be discussed in following chapters. 21 Telesetsky, 2014, p. 480.
22 Themen, 2014, Reduction of Food Losses and Waste in Europe and Central Asia for Improved Food Security
and Agrifood Chain Efficiency, p. 13 [Themen, 2014].
23 Alabrese et al., 2015, ‘Agri-food industries and the challenge of reducing food wastage: an analysis of legal
opportunities’ [Alabrese et al., 2015]; Arroyo Aparicio, 2015, ‘Edible but unmarketable food: some legal problems to be solved on food waste prevention’ [Arroyo Aparicio, 2015]; BIO by Deloitte, 2014, Comparative
15
between the right to food and food wastage, which will be addressed in the following chapters. Before doing so, it is necessary to provide an introductory framework on the topic of food wastage. For this reason, the purpose of this chapter will be to provide an in-depth analysis of this global problem with local repercussions, starting with a literature review of relevant (non-)legal publications discussing food losses and waste, with particular focus on the definitional framework.
2. Facts and figures about food losses and food waste
2.1 The paradox of global food wastage and hunger: What outlook for the future?
The most recent studies carried out by the FAO show that, each year, roughly one third of the edible parts of food produced in the world for human consumption gets lost or wasted along the food supply chain, from primary agricultural production through processing, storage and transportation down to retail, food service and final household consumption.24 We face an absurd situation: while approximately 1.3 billion tons of food produced each year are never eaten,25 about 815 million people around the world still suffer from hunger.26 The international community considers such a situation unacceptable.27 The experts involved in
European Economic and Social Committee [BIO by Deloitte, 2014]; Corini, 2015a, ‘Get consumers truly
informed of their food choices!’ [Corini, 2015a]; Costantino, 2018, La problematica degli sprechi nella filiera
agroalimentare: Profili introduttivi [Costantino, 2018]; Delsignore et al., 2017, ‘Defining the Meaning of Food
Waste as a Matter of Urgency’ [Delsignore et al., 2017]; Lissel, 2015, ‘Food laws and labelling as a contributor to food waste’ [Lissel, 2015]; Lattanzi, 2014; Maccioni, 2018, Spreco alimentare: Regole e limiti nella
transizione verso modelli agroalimentari [Maccioni, 2018]; Östergren et al., 2014, FUSIONS Definitional Framework for Food Waste [Östergren et al., 2014]; Planchensteiner, 2013, They Collected What Was Left of the Scraps: Food Surplus as an Opportunity and Its Legal Incentives [Planchensteiner, 2013]; Pepe, 2016,
‘Approvata la legge contro lo spreco alimentare’ [Pepe, 2016]; Schneider and Lebersorger, 2011b, Barriers For
The Implementation of Prevention Measures Concerning Food Waste [Schneider and Lebersorger, 2011b];
Schneider, 2013, ‘Review of food waste prevention on an international level’ [Schneider, 2013]; Vaqué, 2015a, ‘Food Loss and Waste in the European Union: A New Challenge for the Food Law?’ [Vaqué, 2015a]; Vaqué, 2015b; Waarts et al., 2011, Reducing food waste: Obstacles experienced in legislation and regulations [Waarts
et al., 2011].
24 Gustavsson et al., 2011, p. 4; HLPE, 2014, p. 19. 25 Gustavsson et al., 2011, p. 4.
26 FAO, IFAD, UNICEF, WFP and WHO, 2017, p. 5, 6.
27 Second International Conference on Nutrition, 2014b, Rome Declaration on Nutrition, para. 12(a) [Second
International Conference on Nutrition, 2014b]; UN General Assembly (2008), The right to food, GA Res 187 (LXIII), para. 3 [UN General Assembly Resolution 63/187]; UN General Assembly (2009), The right to food, GA Res 159 (LXVI), para. 3 [UN General Assembly Resolution 64/159]; UN General Assembly (2010), The
right to food, GA Res 220 (LXV), para. 3 [UN General Assembly Resolution 65/220]; UN General Assembly
(2011), The right to food, GA Res 158 (LXVI), para. 3 [UN General Assembly Resolution 66/158]; UN General Assembly (2012), The right to food, GA Res 174 (LXVII), paras. 3, 5 [UN General Assembly Resolution
67/174]; UN General Assembly (2013), The right to food, GA Res 177 (LXVIII), paras. 3, 5 [UN General Assembly Resolution 68/177]; UN General Assembly (2014), The right to food, GA Res 177 (LXIX), paras. 3, 5
16
the Save Food Initiative calculated that saving just as little as one fourth of food which is lost or wasted globally could feed all the hungry people around the world. Moreover, they also found that 800 million individuals could be fed with food which is currently lost or wasted in Europe, Latin America and Africa together.28
This paradox is likely to be even more pronounced with the world’s population reaching 9.7 billion by 2050 and over 11 billion by 2100, challenging the capacity of the agricultural sector to feed the growing number of people living on Earth.29 Already centuries ago Malthus argued that the population’s growth is unsustainable with respect to the availability of natural resources: “The power of population is so superior to the power in the earth to produce subsistence for man”.30 The FAO calculated that, in order to respond to the needs of this larger population, food production will have to increase by 50 percent by 2050 as against the quantity of food produced in 2012.31 However, it has been argued that intensive agricultural activities are unsustainable owing to their adverse impacts on the environment and are responsible for triggering climate change.32 Indeed, since unsustainable food systems are the principal cause of food insecurity, the state of global food security cannot be achieved by merely increasing food production without taking into consideration its impact on natural
[UN General Assembly Resolution 69/177]; UN General Assembly (2015d), The right to food, GA Res. 154 (LXX), paras. 3, 5 [UN General Assembly Resolution 70/154]; UN General Assembly (2016), The right to food, GA Res. 191 (LXXII), paras. 3, 5 [UN General Assembly Resolution 71/191]; UN General Assembly (2017),
The right to food, GA Res. 173 (LXXII), paras. 3, 5 [UN General Assembly Resolution 72/173]; The Milan Charter, 2015 [The Milan Charter].
28 SAVE FOOD - Global Initiative on Food Loss and Waste Reduction, 2018, Key facts on food loss and waste
you should know!.
29 Alexandratos and Bruinsma, 2012, p. 1; FAO, 2017a, p. 12; FAO Conference, 2017b, Reviewed Strategic
Framework, para. 32 [FAO Conference, 2017b]; World Bank, 2008, World Development Report 2008: Agriculture for Development [World Bank, 2008]; World Summit on Food Security, 2009, Declaration of the World Summit on Food Security, para. 10 [World Summit on Food Security, 2009]; Qi and Roe, 2015, Enhancing Global Sustainability by Reducing Food Waste: Articulating and Assessing the Economic Challenges, p. 2 [Qi and Roe, 2015].
30 Malthus, 1798, An Essay on the Principle of Population, p. 4.
31 FAO, 2017a, p. 46; FAO Conference, 2017b, para. 45; UN Human Rights Council, 2008b, Report of the
Special Rapporteur on the right to food Olivier De Schutter, Building resilience: a human rights framework for world food and nutrition security, para. 4 [UN Human Rights Council, 2008b].
The previous FAO study indicated an inevitable 70% growth of agricultural demand, using the period between 2005 and 2007 as a baseline. See FAO, 2008a.
32 CFS, 2014a, High Level Panel of Experts Note on Critical and Emerging Issues for Food Security and
Nutrition, p. 19 [CFS, 2014a]; HLPE, 2012, Food security and climate change. A report by the High Level Panel of Experts on Food Security and Nutrition of the Committee on World Food Security, pp. 67-69 [HLPE, 2012];
Hodges et al., 2010, p. 6; Lundqvist et al., 2008, p. 26; Qi and Roe, 2015, p. 3; Smil, 2016, p. 25; Smith et al., 2014, pp. 822-824.
17
resources,33 especially if food continues to be lost or wasted along the supply chain.34 Given the limits of the resources necessary for food production, food losses and waste represent lost opportunities in terms of natural resources, inputs and finance.35 In turn, deteriorating environment and climate are responsible for declining yields, thereby undermining the enjoyment of the right to food by all.36
2.2 Reducing food wastage to ensure long-term food security
The UN Special Rapporteur on the right to food Hilal Elver,37 together with other scientists and scholars, refuses the idea of increasing food production, since a sufficient amount of food has already been produced to feed the existing and the future population.38 Instead, she argues that what is necessary to ensure long-term food security is a new agricultural reform which will make food systems “more responsive to the challenges of climate change and environmental degradation“.39 It follows that such a reform should aim to,
inter alia, prevent food losses and waste, thereby providing numerous synergies in the fight
against food insecurity and decreasing the pressure on scarce resources.40
33 CFS, 2012c, Global Strategic Framework for Food Security and Nutrition: First Version, paras. 50, 51 [CFS,
2012c]; CFS, 2013b, Global Strategic Framework for Food Security and Nutrition: Second Version, p. 23 [CFS, 2013b]; CFS, 2014a, p. 19; CFS, 2014c, Global Strategic Framework for Food Security and Nutrition: Third
Version, p. 23 [CFS, 2014c]; FAO Committee on Agriculture, 2012a, para. 1; UN Commission on Human
Rights, 2003, para. 16.
34 INCOME consulting – AK2C, 2016, Pertes et gaspillages alimentaires : l'etat des lieux et leur gestion par
etapes de la chaine alimentaire, p. 6 [INCOME consulting – AK2C, 2016]; Telesetsky, 2014, p. 481; UN
Human Rights Council, 2008b, para. 4.
35 CFS, 2014b, Report of the 41st Session of the Committee on World Food Security, para. 12 [CFS, 2014b];
FAO, 2013a, p. 6; Hodges et al., 2010, p.7; Vaqué, 2015a, p. 22.
36 UN General Assembly, 2015c, paras. 84, 88; FAO, 2008a, How to Feed the World in 2050, p. 3 [FAO, 2008a];
FAO Committee on Agriculture, 2014, Sustainable Production Intensification and Sustainable Food Systems, para. 35 [FAO Committee on Agriculture, 2014]; Maccioni, 2018, p. 2.
37 UN General Assembly, 2015c, 2015, para. 83.
38 Alexandratos and Bruinsma, 2012, p. 1; International Conference on Nutrition, 1992, World Declaration and
Plan of Action for Nutrition, para. 1 [International Conference on Nutrition, 1992]; FAO Conference, 2017b,
para. 121; Gjerris, Gaiani, 2015, p. 60; Giovanucci et al., 2012, p. 5; Lundqvist et al., 2008, p. 4; Smil, 2016, p. 25; UN General Assembly Resolution 63/187, para. 3; UN General Assembly Resolution 64/159, para. 3; UN
General Assembly Resolution 65/220, para. 3; UN General Assembly Resolution 66/158, para. 3; UN General Assembly Resolution 67/174, para. 3; UN General Assembly Resolution 68/177, para. 3; UN General Assembly Resolution 69/177, para. 3; UN General Assembly Resolution 70/154, para. 3; UN General Assembly Resolution 71/191, para. 3; UN General Assembly Resolution 72/173, para. 3; UN Commission on Human Rights, 2003,
para. 16; World Food Summit, 1996b, World Food Summit Plan of Action, para. 5 [World Food Summit, 1996b].
39 UN General Assembly, 2015c, 2015, paras. 84, 85.
40 CFS, 2014a, p. 19; CFS, 2014g, Summary and Recommendations of the High-Level Panel of Experts (HLPE)
Report on Food Losses and Waste in the Context of Sustainable Food Systems, p. 1 [CFS, 2014g]; Hodges et al.,
18
Likewise, the FAO claims that the major challenge that the humanity faces in these days and in near future is to produce more with less in order to feed the rapidly growing population worldwide in the context of scarcity of natural resources.41 Usually, the ‘producing more with less’ paradigm is associated with (un)sustainable agricultural intensification but the same effect can be achieved by reducing food wastage. The FAO suggests, in its report on ‘The
Future of Food and Agriculture’, a variety of policy responses to the challenge of ending
hunger, including boosting agricultural production, enhancing social protection, connecting farmers to markets and food pricing, leaving out reduction of food losses and waste42 despite the fact that the previous version of the FAO Strategic Framework identified food wastage reduction as one of the feasible solutions to this challenge43 and that the current reviewed FAO Strategic Framework explicitly includes curbing of food losses and waste in the Strategic Objective 4 focused on enabling more efficient agricultural and food systems.44 Moreover, in 2012, the FAO Committee on Agriculture voiced the concern of States that an increase in food production alone will not be sufficient to feed the world45 and underlined the significant potential of food wastage reduction in abating the need for boosting production and enhancing food security.46
As outlined above, curbing food wastage undoubtedly represents one of the essential measures necessary for achieving global food security and the right to food for everyone in the context of the growing world population and scarcity of natural resources. In order to better grasp the nexus between food wastage and the right to food, it is necessary to
2014b, paras. 10, 14(n); Smil, 2004, ‘Improving efficiency and reducing waste in our food system’, p. 18 [Smil, 2004].
41 FAO, 2017a, p. 136; FAO Conference, 2017b, paras. 63, 67, 69. See also The Milan Charter, 2015, p. 4;
Vermeulen, Campbell and Ingram, 2012, ‘Climate change and food systems’, p. 196 [Vermeulen, Campbell and Ingram, 2012].
42 FAO, 2017a, p. 139.
43 FAO Conference, 2013, Reviewed Strategic Framework, para. 17 [FAO Conference, 2013]. 44 FAO Conference, 2017b, para. 141.
45 FAO Committee on Agriculture, 2012a, para. 1.
46 FAO Committee on Agriculture, 2012b, Global Trends and Future Challenges for the Work of the
Organization, paras. 15, 50; FAO Committee on Agriculture, 2012c, Report of the 23rd Session of the Committee
on Agriculture, para. 8(e).
It is noteworthy that, also in 2014, the FAO itself expressed its position on food security at ECOSOC, claiming that food security cannot be reached by merely boosting productivity and that crippling food wastage represents one of the ways of enhancing food security. See FAO, 2014d, Food security for sustainable development and
19
understand what we mean by food wastage by examining the definitional framework of food losses and food waste.
3. The need for a legal definition of ‘food losses’, ‘food waste’ and ‘food wastage’ 3.1 A review of the existing definitional framework
3.1.1 Gaps, general confusion over terminology and open questions
Despite the persisting confusion with regard to the correct use of terminology concerning food losses and food waste, legally binding definitions of food wastage are starting to sprout up at national47 and regional48 levels. However, a harmonized definition at the international level is still missing.49 A study carried out for FAO highlights that until now the academic community provided over one hundred heterogeneous definitions of food losses and waste,50 referring to common terms such as, inter alia, ‘food wastage’, ‘food waste’, ‘kitchen waste’, ‘(non-)avoidable food waste’, ‘(in)edible food waste’, ‘food and drink waste’, ‘food loss’, ‘post-harvest loss’ and ‘spoilage’, yet attributing different and often contrasting meanings to these words.51
For this reason, this section will, first and foremost, outline the criteria employed by the literature to define food wastage. Secondly, it will provide a wide panorama of various terms and interpretations concerning food losses and food waste provided by scholars, experts, national and regional legislation and policies. Thirdly, considering that a mere outline of the existing definitions of food losses and food waste is insufficient to provide a solid basis for the right to food analysis of food wastage in the following chapters, the mosaic of terms and interpretations will be complemented with an in-depth analysis of the individual components of these definitions. In particular, an answer will be provided to the following questions: What is food? What is waste? What do we mean by losses? What is the meaning of other terms hidden in the definitions of food losses and waste, such as ‘food supply chain’, ‘removed from’, ‘discard’, ‘(in)edible’, ‘disposal’, ‘reuse’, ‘recovery’, ‘intended for human
47 See for instance the definition of food wastage (‘spreco alimentare’) in the recently enacted Italian law against
food wastage: Legge 19 agosto 2016, n. 166, Disposizioni concernenti la donazione e la distribuzione di prodotti
alimentari e farmaceutici a fini di solidarietà sociale e per la limitazione degli sprechi, Art. 2(1)(d) [Legge 19 agosto 2016, n. 166].
48 See for example the definition of food waste in the Directive 2008/98/EC of the European Parliament and of
the Council of 19 November 2008 on waste and repealing certain Directives, Art. 3(4a) [Directive 2008/98/EC].
49 Costantino, 2018, p. 19; Gjerris, Gaiani, 2015, p. 56. 50 Themen, 2014, p. 13.
