What is the value-added of the new Food Assistance Convention 2012?

We live in an age of vagueness and loose commitments regarding development and international legal enforcements, and the Food Assistance Convention (FAC) can perfectly illustrates that situation.

The negotiations to review the FAC ended some months ago and the final text is already deposited at the UN for signature and ratification. It is worth mentioning that those are two different processes undertaken by two separate institutions, as signature is done by the ruling government whereas the ratification has to be approved by the Parliament. I underlined that as it seems that both acts are given equal consideration in the legal text of the Convention. Moreover, it seems a bit odd to merge widely-accepted sovereign countries with Separate Custom Entities, thus stressing the trade-related nature of this agreement. One entity just needs to have a separate custom to become signatory of this legal agreement. Because, we shall not forget, this is an international legal contract, and I would like to comment it from such perspective.

Firstly, the Convention will enter into force whatever happens and whoever signs, ratifies, accepts or approves, all of them terms included in article 12. In principle, according to article 15.1 there needs to be five signatories by November 2012, but the following paragraph states that whatever the number, those who have accepted, approved or ratified by that date, may decide the Convention will enter into force among themselves. Taking that legal clause to the extreme, should the USA Government be the only one to sign the agreement (without even being ratified by the Congress), it could enter into force on 1 January 2013.

Such legal clauses to facilitate the entry into force under any circumstances and at a very fast pace are rather odd amongst international agreements and they may reflect the urgency by some negotiating parties to have this convention approved. As an example, one could compare the mechanisms negotiated to render operational the Optional Protocol to the International Covenant of Economic, Social and Cultural Rights.

In general terms, this Convention is far better than the FAC 1999, not just in terms of broadening the scope of food aid (the detailed paragraph on the right to food and the FAO-sponsored Voluntary Guidelines is quite an achievement) but also accepting means to deliver that aid that have been largely contested for many years, such as local purchase, untied food aid and prioritizing grants vs. loans. However, it also deserves to be examined more in detail, reading carefully the different clauses and understanding the legal implications of the written text, as this is a legal framework and not a political declaration of good will.

The rather positive issues:

1.- The good intentions of this convention go beyond saving lives (major purpose of the FAC 1999) and it aims at reducing hunger, improve food security and the nutritional status. The goals are ambitious but the means parallel that ambition (cash-based social networks, local purchase, grants encouraged vs. loans), at least in paper. It is a pitty that even the signatory countries do not seem to pay much attention to their obligations within the Convention (as it is barely mentioned in political and technical speeches during Humanitarian crises), and its perception as a club of old-fashioned donors, those who were able to provide food aid in the sixties, limits very much its consideration by the others, namely emerging donors or the recipient countries, none of them invited to draft the new Convention.

2.- The importance given to the quality of the food assistance provided (in terms of quality, adequacy and cultural pertinence) is also a good step forward (just remember the GMO food aid affair in Zambia in 2002 or Zimbabwe later on).

3.- This Convention and the different processes that were conducted to draft, review and keeping it alive are rather unusual in the international legal scene and some lessons can be learned to be applied to a recent proposal for a binding Food Treaty. For instance, there is just a small coalition of the willing (only eight signatory members) that have managed to survive across the years (since 1967) with a common goal and shared values. The medium- and short-term mandates of the Convention have been reviewed several times therefore enabling the legal framework to adjust to evolving paradigms of humanitarian assistance and global political changes. It is not a static legal framework, unlike many others, and this plasticity has contributed to its survival.

3.- With regard to some specificities, I would like to mention some articles that encompass positive provisions.

  • Art 2. C. ii. iii.- It refers to involve beneficiaries in the different steps of food assistance programmes (assessments, implementation and evaluation), what goes very much in line with the human rights approach to development and it quite a change when compared to standard humanitarian interventions in the past. The consideration of safety and quality standards also comes from the right to adequate food and it is also worth mentioning as a rather good improvement.
  • Art 4, 3.- Regarding eligible products, it seems evident that the countries have opened the hand for many products, other than cereals, oil and seeds, although the greatest share of food aid is still dominated by corn and rice.
  • Art 5.7.- The 80% minimum for grants is one of the few numerical and absolute thresholds included in the text.

The weak issues:

1.- Considering the recurrent clashes during the WTO negotiations of the Doha Round between the G-77 and the OECD countries, the clear subordination of this Convention to the WTO regulations on food aid seems to alleviate the Western´s defeat in its intentions to regulate food and agricultural products as any other commodity. According to the author, it goes against common sense to give primacy to trade regulations against humanitarian actions, as stated black on white in article 3.

2.- Although the quality and modalities of food assistance delivery have clearly improved, there remain many “exit doors” where signatory countries can escape the Convention´s legal considerations. Actually, there seems to be not much control or monitoring, and it is up to each country to decide when these “exit doors” can be crossed. I further explain:

  • Art 2, a, i.- “provide food assistance only when it is the most effective and appropriate means…”  Who will judge that? Who will monitor?
  • Art 2, a, v.- “provide food assistance in a way that does not adversely affect local production and market conditions  Will there be preliminary assessments conducted by third parties in a neutral and scientific way. Who will decide?
  • Art 2, a, vi.- “Provide food aid in fully grant form, whenever possible. The underlined sentence is what I call the “Exit Doors”. So, it will be up to any given country to decide (without any threshold, or peer-review, or neutral assessment) if the grant is possible or not, only based in their own national interest. Other examples of similar nature are provided below.
  • Art 2, b, i.- “Minimise associated costs as much as possible. Again, it is only for each signatory country to decide, with no external assessment or peer-review. So, what is the difference with a No-Convention Scenario?
  • Art 2, b, iii.- “Purchase food…locally or regionally, whenever possible and appropriate”. Actually, that is a double exit clause, because you can avoid local purchase when it is possible but you do not consider it appropriate (the rationale does not need to be even mentioned or justified to the others). Thus, it seems a total discretional freedom for such decisions. Why do you need an international legal agreement to state the otherwise usual way of doing things?

I will not continue developing similar examples with (a) untied cash-based assistance (whenever possible), (b) monetization of food aid (when needs are identified), (c) re-exportation (to maximum extent possible) or (d) food assistance in full grant (whenever possible). The FAC is full of exit doors where countries can escape the good intentions of the legal agreement. As there is no mechanisms for accountability, redress or sanction when failing to fulfill the clauses of the Convention, it is commitments are rather testimonial and leverage will only be exerted by the customary laws of the club membership, rather by hard binding laws.

3.- The article Art. 5.9. can serve to illustrate the non-binding status of the Convention. What if a signatory country does not live up to the fact of untying its food assistance to commercial exports? or what if they allocate a disproportionate amount of a pledge to operational costs? Those matters would surely be dealt with at the Food Assistance Committee, where decisions shall be made by consensus, with no party formally opposing the decision (art. 7.4.). Let´s say that, as a hypothetical and rather unlikely case, Switzerland ties its food aid to commercial exports, and it allocates 40% to operational costs, with 25% of total food assistance pledge in form of loan. Those three features could go against the spirit of the Convention, although only one (the latter) would go against the words of the Convention. The matter would be presented to the Committee for discussion and Switzerland could justify its decision by internal regulations, trade considerations and recipient country conditionalities, so it would not agree with any type of sanction or decision by the others. And as one signatory member can become a blocking majority, thus no consensus, no decision and no sanction. Life would go on.

Just to end, I will go back to the title: Why do we need a legal framework for this? Apart from the positive good intentions, what is the value-added on this negotiated agreement? In order to improve accountability and legal enforcement, it could make sense to have an inter-governmental body within the FAC to fairly assess the feasibility and appropriateness of the local purchases, monetization schemes or untied cash-based assistance, in order to avoid discretionality and justifications for self-interest. That could provide an additional and binding value to this legal agreement that has very good intentions and ideas but loose clauses.

Additional interesting comments to this FAC 2012 text can be accessed in the ODI Blog entry by Edward Clay) and the Triple Crisis blog entry by Jennifer Clapp and Stuart Clark.