Resumen: El presente artículo evalúa jurídicamente el contenido del Tratado de Libre Comercio (TLC) entre Ecuador y la Unión Europea, contrastándolo con las normas que forman parte del régimen jurídico de soberanía alimentaria en Ecuador, para así determinar los impactos del TLC en las leyes y políticas alimentarias del país. Además, se evalúan las obligaciones constitucionales del Estado respecto al desarrollo agroalimentario interno en el contexto del comercio internacional de alimentos.
Palabras clave:Tratado de Libre ComercioTratado de Libre Comercio,soberanía alimentariasoberanía alimentaria,desarrollodesarrollo,comerciocomercio.
Abstract: The following article analyzes the content of the Free Trade Agreement (FTA) between Ecuador and the European Union, contrasting it with the rules that are part of the Ecuadorian legal regime of food sovereignty, in order to determine the impacts of the FTA on the laws and food policies of the country. Moreover, this article assesses the constitutional obligations of the State respect the intern alimentary development in the context of the international food commerce.
Keywords: Free Trade Agreement, food sovereignty, development, commerce.
Artículos originales (análisis)
Tratado de Libre Comercio con la Unión Europea: Un Análisis desde el régimen jurídico de soberanía alimentaria en Ecuador
Free Trade Agreement with the European Union: An analysis from the legal system of food sovereignty in Ecuador
Pontificia Universidad Católica del Ecuador
This work is licensed under Creative Commons Attribution-ShareAlike 4.0 International.
Received: 10 November 2018
Accepted: 18 April 2019
Ecuador has been characterized by operating an economic - productive model that tends towards the export of primary products and the importation of industrialized goods from developed countries. This primary exporting scheme has been in place since colonial times, mainly due to the current government’s lack of capacity to structure a stable policy that favors productive diversification.
The 2008 Ecuadorian Constitution tried to adopt new ideas to encourage a change in the country’s economic and productive structures; however, most of these have been reduced to normative statements which have, on multiple occasions, been ignored by state agencies (Giunta, 2018). An example of this is the concept of food sovereignty, incorporated in Constitutional Article 281 as a strategic objective and a State obligation to ensure that people have access to adequate, healthy and culturally appropriate food (CRE, 2008, Art. 281).
This constitutional definition implies that food sovereignty is mandatory in the country and that the State has the obligation to fulfill a series of responsibilities towards this end. However, since there is no real agreement or uniformity between the policies and norms that form part of the food sovereignty system, it has lost strength and has not been taken into consideration in its true scope when making significant decisions for the country’s future, such as ratification of the Free Trade Agreement with the European Union (FTA).
This makes sense if we consider that, through this Agreement, the State acquired international obligations in the agro-food sector that limit it in the fulfillment of its constitutional obligation to guarantee food sovereignty, in particular, in regards to its responsibility to adopt “fiscal, tax and tariff policies that protect the national agro-food and fishing sector, to avoid dependence on food imports” (CRE, 2008, Art.281.2).
The present article thus analyzes the impacts of the FTA on the legal regime of food sovereignty. To do this, the first section addresses the Agreement’s legal nature, components and content; the second section explains the essence of food sovereignty and the configuration of its legal regime in Ecuador; and the third section assesses the effects that the FTA has had on food sovereignty regulations.
Regarding methodology, this article employs a qualitative research approach, “based on methods of data generation which are both flexible and sensitive to the social context in which data are produced” (Mason, 2002, p.3).
This includes, for example, observations, annotations and documents.
The Free Trade Agreement with the European Union (hereinafter FTA), is an international treaty, understood as “an agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation” (Vienna Convention, 2005, Art. 2).
This international instrument is comprised of the following documents: (i) the Protocol of Accession of the Trade Agreement between the European Union and its Member States, on the one hand, and Colombia and Peru, on the other, to take into account Ecuador’s accession; (ii) the annexes to the aforementioned Protocol; and, (iii) the Trade Agreement between the European Union and its Member States, on the one hand, and Colombia and Peru, on the other. The Protocol allows Ecuador’s accession to the Multiparty Trade Agreement to take effect; However, all these documents are recognized as integral parts of a single international treaty (Opinion No. 009-16-DTI-CC, 2016, p.24).
Regarding the FTA’s content, it is predominantly commercial in nature, with certain provisions that deal with political or social issues2 (Saura, 2013). Its main objective is to create “a free trade area, in accordance with Article XXIV of the 1994 General Agreement on Tariffs and Trade” (ACM, 2016, Art.3), reaffirming the obligations and rights acquired within the framework of the WTO (ACM, 2016, Art.5).
It is important to mention that some of the obligations contracted by the State with FTA ratification can limit compliance with constitutional norms, such as that contained in article 281 in regards to the food sovereignty regime in Ecuador. This will be analyzed in the following section.
The concept of food sovereignty was first introduced at international level in 1996 by the social movement Via Campesina, during the World Food Summit in Rome (Páez, 2016). It is a multidimensional concept in constant construction, and therefore there is no single definition of it. However, is important to differentiate the meaning of food security, the human right to food, and food sovereignty.
The right to food is recognized in many international instruments, such as the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights. The Ecuadorian Constitution likewise establishes that people have the right to continuous access to healthy, adequate and nutritious food (CRE, 2008, Art.13). The right to food can thus be demanded by citizens through legal mechanisms.
On the other hand, food security is an international objective that “exists when all people, at all times, have physical and economic access to sufficient, safe and nutritious food to meet their dietary needs and food preferences for an active and healthy life” (FAO, 1996).
In this sense, while food security is an important concept, food sovereignty goes further, because it establishes how the right to food must be satisfied and allows the objective of food security to be fulfilled. Food sovereignty is thus a precondition for achieving genuine food security and guaranteeing the right to food (Windfuhr and Jonsén, 2005; Heinisch, 2013; Vía Campesina, 1996).
Once these distinctions are clarified, it is important to mention that food sovereignty can be considered both an agro-food system and a right (Declaración Final del Foro Mundial sobre Soberanía Alimentaria, 2001). As a right, food sovereignty consists of the people’s capacity to freely structure their agro-food policy to ensure the human right to food through access to healthy and sufficient food, produced agroecologically and obtained giving preference to fair market methods that encourage the access of small producers to production resources (Houtart, 2014; Altieri and Nicholls, 2017; Windfuhr and Jonsén, 2005; Nyéléni Declaration, 2007).
It is important to mention that the right to food sovereignty was not formally recognized by the international community until the end of 2018, when the UN General Assembly adopted the United Nations Declaration on the rights of peasants and other people working in rural areas. While this instrument is not binding, it represents a significant international precedent because, for the first time, it recognizes the right to food sovereignty, as follows:
Peasants and other people working in rural areas have the right to determine their own food and agriculture systems, recognized by many States and regions as the right to food sovereignty.
This includes the right to participate in decision-making processes on food and agriculture policy and the right to healthy and adequate food produced through ecologically sound and sustainable methods that respect their cultures. (United Nations Declaration on the rights of peasants and other people working in rural areas, 2018, Art. 15.4)
But this right cannot be guaranteed without an agro-food system aligned to that objective (Heinisch, 2013). Agro-food systems are defined as food production systems formed by a set of activities that encompasses primary agricultural production through consumption. According to Via Campesina, there are two types of systems: agroindustrial/agro-business, and a food sovereignty centered system (Gutman and Gorenstein, 2003, Cardona et al., 2010). The differences between these systems are illustrated in the following tables.
Source: Own elaboration based on Ortiz (2015); Carrión (2013); Friedmann and McMichael (1989); Montagut & Dogliotti (2008); and Rosset (2004).
In Ecuador, we find both of these models to be present: the constitutionally-established food sovereignty model, and the more widely practiced agribusiness model. The Constitution also establishes food sovereignty as a strategic objective and a State obligation (CRE, 2008, Art. 281). A legal regime has thus been structured around this concept, whose configuration will be analyzed in the following section.
The food sovereignty regime is composed of: (i) constitutional and international norms on food sovereignty; (ii) public agro-food policies; and, (iii) related legal regulations. In addition, programs, projects and plans through which public policies on food sovereignty are implemented form part of this regime (LORSA, 2009, Art.1).
The substantive basis guiding the food sovereignty regime is
Constitutional Article 281, which establishes that food sovereignty “constitutes a strategic objective and a State obligation to guarantee that individuals, communities, peoples and nationalities achieve ongoing self-sufficiency for healthy, culturally appropriate food.”3 (CRE, 2008). The State will thus have fourteen responsibilities, the primary of which are:
1. Promote production, agro-food and fishing transformation of small and medium production units, community production and social and solidarity economy.
2. Adopt tax, tax and tariff policies that protect the national agrofood and fishing sector, to avoid dependence on food imports (CRE, 2008, Art. 281).
In terms of international norms regarding food sovereignty, we have the United Nations Declaration on the rights of peasants and other people working in rural areas, the Andean Decision 742 issued by the CAN (2010), which establishes an Andean Program to Guarantee Food and Nutritional Security and Sovereignty (SSAN) and Andean Decision 371 which establishes the Andean Agricultural Pricing Tier System to avoid the instability of the domestic agricultural market and promote “greater external food dependence” (Andean Decision 371, 1995, considering second).
Public policies are understood as actions which “use governmental authority to commit resources in support of a preferred value” (Considine 1994, p3). In Ecuador, by constitutional provision, the Ecuadorian State is thus bound to “create and execute public policies, and control and sanction non-compliance” (CRE, 2008, Art. 277.3) in order to ensure good living, including food sovereignty (CRE, 2008, Art. 277.3). This makes sense considering that public policies are constitutional guarantees for the enforcement of rights, just as are normative and jurisdictional guarantees (CRE, 2008, Art. 85).
The country’s primary public policy instrument is the National Development Plan 2017-2021, which is mandatory for the public sector and indicative for the private sector. This document is the main reference point for policies, public projects, programming and execution of the State budget and the coordination of exclusive competencies between the central State and the decentralized autonomous governments (CRE, 2008, Art.280).
Regarding food sovereignty, a public policy objective established in this plan is to “develop productive and environmental capacities to achieve rural food sovereignty and Good Living”4. As relates to this objective, those responsible for building public policies that integrate the country’s legal regime of food sovereignty are the Central State and decentralized autonomous governments (LORSA, 2009, Art.1).
There are several laws that relate to food sovereignty. The most important are the Organic Law on the Food Sovereignty Regime (hereinafter LORSA ), and the laws regulating the three most important productive resources according to Title II of the LORSA, which are: Law of Agrobiodiversity, Seeds and Promotion of Sustainable Agriculture (hereinafter Law of Seeds), Organic Law of Rural Lands and Ancestral Territories (hereinafter Law of Land) and the Organic Law of Water Resources, Uses and Exploitation of Water (hereinafter Law of Water). It is important to mention that the bodies responsible for the articulation and generation of public policy projects and related laws at the national level are: the Food and Nutritional Sovereignty System (SISAN) and the Plurinational and Intercultural Conference on Food Sovereignty (COPISA) (LORSA, 2009, Art.31, 32).
As we see, at least normatively, food sovereignty is a legal priority for the State, but in practice, the agricultural situation in Ecuador has changed little since 2008. This is because, although there has been an effort to create a legal regime to take advantage of the state’s agrobiological resources, while at the same time encouraging a change in the productive matrix (Daza, 2015), the concentration of agricultural earnings in the hands of a few has increased.
In fact, in 2006, 7% of agribusinesses concentrated 46% of total agricultural income; while in 2013, 9% of agribusinesses controlled 51% of agricultural income (Báez, 2017, p.19). This increase in the concentration agricultural earnings shows that the current legal framework regarding food sovereignty has not been useful in modifying the country’s agro-food production model.
In addition, we can note that the constitutional and legal prescriptions on food sovereignty were ignored by government authorities when they ratified the FTA. This can be demonstrated in Constitutional Court Opinion No. 009-16-DTI-CC, which should have deeply analyzed the constitutionality of the FTA’s content to guarantee the principle of constitutional primacy. Unfortunately, the Court did not analyze the repercussions that might be had by the FTA on the food sovereignty regime. For this reason, in the next section we will refer to this topic and present certain effects from the FTA that have already occurred in practice.
The ratification of the FTA presents advantages and disadvantages for Ecuador. On one hand, we can now find lower prices on a variety of products coming in from the EU. This situation has clear benefits for consumers, since they will pay less for high quality products. In addition, 99.7% of agricultural goods and 100% of industrial products from Ecuador entered the EU tariff-free. This represents an open market of 514 million potential consumers who prefer fair trade products (Van Steen and Saurenbach, 2017).
On the other hand, however, the FTA seeks the “progressive and gradual liberalization of trade in goods” (Trade Agreement, 2016, Art.4.a) including agro-food products, which means that the state’s ability to create regulations and policies to protect the domestic agricultural market is directly affected by the aforementioned international instrument. This is also because, in order to exploit the Agreement’s trade advantages and the opening of the European market, the State must focus its agro-food production on maximizing exports, rather than on achieving the aims of the food sovereignty regime.
According to Falconí and Oleas (2012), the international commitments that the State took on through the ratification of the FTA oblige it to act in accordance with an exogenous development theory. This is fostered by international organizations and developed countries, and is not based on the endogenous development theory contained in the Constitution and the National Development Plan 2017-2021.
This makes sense if we consider that paragraph 7 of Constitutional article 276 establishes the promotion of population capacities and the protection and promotion of cultural diversity—and its production and exchange mechanisms—as an objective of the country’s development regime (CRE, 2008).
In addition, the fourth paragraph of the article in question establishes the objective of “building a fair, democratic, productive, supportive and sustainable economic system based on the equal distribution of the benefits of development, production means and the creation of dignified, stable work” (CRE, 2008, Art. 276.4).
Consistent with the foregoing, numeral 2 of Constitutional Article 284 establishes that the country’s economic policy will have the objective of “encouraging national production, systemic productivity and competitiveness.” Article 304 of the Constitution likewise establishes that the principle objectives of commercial policy include: prioritizing the strengthening and development of internal markets (CRE, 2008, Art. 304.1); strengthening the productive apparatus and national production, always ensuring that food sovereignty is guaranteed (CRE, 2008, Art. 304.3,4); and promoting the development of economies of scale and fair trade (CRE, 2008, Art. 304.5). The 2017-2021 National Development Plan also establishes that:
(…) 2008 Montecristi Constitution is the foundation of the society we wish to achieve. A society oriented towards a new inclusive and equitable development regime, based on solidarity. A new model that allows for the country’s sustainable development over the long term, in a harmonious relationship between humans and nature (...) We want to progress towards a social and solidary, environmentalist economy, based on knowledge and human talent, in order to leave behind extractivism, achieve full employment, reach greater productivity, and democratize the means of production and wealth (...) A productive country in which we all have decent employment, and where rural development is a priority (PND, 2017, pp.12-13)
From the foregoing, we can infer that Alexander Hamilton’s theory of endogenous development is in force in the country. This theory supports the primacy of creating productive synergies within regions and cities and views the dissemination of knowledge and innovations to diversify production, lower costs and allow the productive sectors to increase capacity to compete with the foreign productive supply as indispensable (Falconí and Oleas, 2012). In this way, Vazquez-Baquero (2003) establishes that:
The endogenous development approach holds capital accumulation to be a key process in economic growth. It argues that economic development comes about as a result of the processes determining capital accumulation: creation and diffusion of innovation in the productive system, flexible organization of production, the generation of agglomeration and diversity economies in cities and institutional development. Moreover, it identifies a path for selfsustained development (p.7).
Therefore, this theory revalues local development as a source of progress, strategic alliances between productive sectors within the State as a way to strengthen the general economy as well as advocating the need for the State to create a strong institutionality framework, supported by regulations and public policies that generate confidence both within the State and abroad, to attract foreign investment (Falconí and Oleas, 2012).
This means that the State, far from following the traditional course of developed countries-- diminishing its influence on local production and leaving the balance of payments to the swing of free trade--must instead be present in creating the capacities and the environment necessary for its people to forge their own development (Vázquez-Baquero, 2003).
Consistent with this, Hounie et al. (1999) state that endogenous development has also been positively valued by organizations such as the Economic Commission for Latin America and the Caribbean (ECLAC), establishing that
(...) the new models make arguments placing primary responsibility for the relative failure of certain countries in terms of growth and participation in the international economy on government intervention less convincing. However, they do not seem to incorporate in their foundations, at not least explicitly, two aspects characteristic of economies that, like those of Latin America, suffer from backward conditions: on the one hand, a lag in the diversification and articulation of their productive structure, which shows limited development of technologically more complex activities; on the other, a lag in existing accumulation levels, which are an indispensable condition for investment and economic growth. These disadvantages take on new dimensions in a globalized economy, where states face decreasing levels of autonomy in economic policy management (Hounie et al., 1999, p.25)
The authors warn that in a globalized economy, in which free trade agreements and international treaties of similar magnitude are quite common, states lose autonomy and their ability to self-determine the most appropriate policies for their development.
This is the case of the FTA with the European Union, because it makes it impossible for the state to help small farmers and ensure development based on local production, and as such is incompatible with the endogenous development theory adopted by the Ecuadorian Constitution. In this regard, Falconi and Oleas (2012) affirm that FTAs allow “tie the hands of public policy and turn large national spaces into market and investment spaces for the benefit of the transnational companies of the North.”
The above represents a great risk in the Ecuadorian case, considering that , even without the FTA with the European Union, the process for changing the agro-food system has been very weak. It is important to mention that a significant legal and constitutional framework can be found, but there is little real application. Some examples of public policies formulated in function of food sovereignty but rarely applied are the following:
Source: Elaboration by the author based on the Ministry of Agriculture, Livestock, Aquaculture and Fisheries (2016 , pp. 78-86)
Regrettably, many of the government’s public policies have been focused on promoting the most efficient economic sectors. The agrofood sector has therefore not changed its traditional structure and at present, three companies control 91% of the food industry: La Favorita Corporation (50%), El Rosado Corporation (31%) and Megasantamaria Corporation (10%). The Pronaca company alone controls 62.16% of the total meat trade (Giunta, 2018, par. 37).
Additionally, the main agro-food policies applied by the national government over the last two years, within the “Minga Nacional Agropecuaria” Project, part of the “2017-2021 National Development Plan” are focused on promoting production maximization, granting small farmers subsidized agricultural kits, which contain non-native chemicals and seeds that promote the monoculture of large tracts of land. As consequence, state policies promote agribusiness and fail to observe constitutional provisions on food sovereignty (Calvopiña, 2017; Espinosa, 2017)
In this sense, the main problem is the erroneous implementation of public policies and norms that are part of the legal regime of food sovereignty. This in turn is partly due to the lack of political will by officials and political party members who traditionally have been associated with agribusiness, and fight continuously to maintain the same primary export system, despite the negative consequences for small producers.
The most evident example of this situation is, precisely, the FTA’s ratification, which will make it still more difficult to solidify changes in the Ecuadorian agro-food system. This makes sense if we consider that the FTA imposes upon the state certain regulatory and public policy adaptations orientated towards the free trade of agricultural goods. Some examples of already-observable legal adaptations are the following:
Adaptation of the Law of Water to the FTA: The Constitution of Ecuador prohibits the privatization of water (CRE, 2008, Art. 282), but the FTA establishes the commitment to liberalize the trade of services. Therefore, it is at least suspicious that the Law of Water includes an exception to the prohibition of water privatization, noting that a private provider may carry out the sub-processes for public water service management when the competent authority does not possess the necessary technical or financial conditions to do so (Ley de Aguas, 2014, Art. 7.b).
Adaptation of the Law of Seeds to the FTA: This law was published six months after the FTA’s ratification, and allows the entry of transgenic seeds and crops into the national territory, so long as they are to be used for research purposes (Ley de Semillas, 2017, Art. 56). This situation could threaten the country’s food sovereignty if it is evaluated in relation to Annex V of the Protocol of Adhesion of Ecuador to the FTA, which allows the tariff-free entry of European seeds.
In fact, during the year 2016, Ecuador imported 1.2 million dollars in seeds, fruits and spores for sowing from the EU; while from January to July of 2018 alone, 1.6 million dollars were imported (Ministerio de Comercio Exterior, 2018). As we see, a visible increase of the importation of European seeds has occurred, which could carry transgenic components and lead to a distortion in the crops’ phytogenetic, resources creating a significant loss of endemic species.
The FTA therefore limits the State in fulfilling its obligation to guarantee food sovereignty, because the State will not be able to prevent people from consuming food about whose effects there exists scientific uncertainty (CRE, 2008, Art. 281.13), and will be unable to encourage the preservation and use of our own seeds (CRE, 2008, Art.281.6).
Adaptation of the Law of Land to the FTA: The FTA prohibits the State from adopting measures that limits foreign companies in the number of holdings (land or properties) they can acquire in the country to carry out productive activities (Trade Agreement, 2016, Art. 112.2). As a result of this international obligation, the Law of Land makes it possible to acquire large amounts of land following authorization from the Ministry of Agriculture (Ley de Tierra, 2016, Art. 19).
The requirements for obtaining this authorization are expressed in the Law’s Regulation, but they are brief and do little to address the concept of food sovereignty; ample space is given for subjectivity on the part of the officials granting the authorization (Reglamento a la Ley de Tierras, 2017, Art.8). The State is therefore limited by the FTA in fulfilling its responsibility; which, according to Constitutional article 282, consists of avoiding the concentration of land and productive factors.
The examples mentioned show that the FTA influences the legal regime of food sovereignty and pressures the State to make the changes necessary to harmonize domestic legislation with the international regime, even when these changes may be opposed to the Constitution.
Regarding food sovereignty, the spirit of the FTA is not consistent with that of the Ecuadorean Constitution. The FTA adopts a theory of exogenous development, which is promoted by developed countries and privileges free trade with little state intervention in internal market processes, while the Constitution, throughout its articles, integrates an endogenous development theory, which promotes production for internal consumption and the strengthening of state policies to protect and boost national production.
The regulations that form part of the legal regime of food sovereignty in Ecuador have been adjusted, and will continue to be modified in the coming years to bring them into line with the obligations taken on in the FTA. This implies a limitation on the State in its ability to create and implement agro-food policies that benefit the national productive sector.
http://www.revistarfjpuce.edu.ec/index.php/rfj/article/view/158/104 (pdf)
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Source: Own elaboration based on Ortiz (2015); Carrión (2013); Friedmann and McMichael (1989); Montagut & Dogliotti (2008); and Rosset (2004).
Source: Elaboration by the author based on the Ministry of Agriculture, Livestock, Aquaculture and Fisheries (2016 , pp. 78-86)
