THE EU-EAC ECONOMIC PARTNERSHIP AGREEMENT

The impact of EPAs on the Right to Food.

Kabatabaazi Winfred
Supervisor: Malcolm Langford
Deadline for submission: September 01 2009

Number of words: 17,976 (max. 18.000)

24.08.2009
______________________________________________________________________________
UNIVERSITY OF OSLO
Faculty of Law
 Content
Acknowlegdement III
Acronyms IV
Chapter One
1. Introduction 1
1.1 Research Questions 3
1.1.1 Objectives of the Study 4
1.1.2 Methodology and Sources 4
1.2 Delimitation of thesis 4
1.2.1 Delimitation of thesis 4
1.2.2 Structure 5

Chapter Two
2. EPAs and the WTO 6
2.1 Historical Background 7
2.1.1 The EAC and the EPA 10
2.2 EPAs and WTO Compatibilty 13
2.2.1 Article XXIV-Interpretation and Application 13
2.2.2 EPAs and the Enabling Clause 16
2.3 EPAs and the Agreement on Agriculture 18

Chapter Three
3. EPAs and the Human Right to Food 22
3.1 The Right to Food 23
3.1.1 The Extraterritorial Obligation in the ICESCR 26
3.2 The EU-EAC EPA and the Right to Food 29
3.2.1 The Impact of the EPA on the right to food 32

Chapter Four
4. Justiciability of the Right to Food under the EPAs 39

I
4.1 The Legal Nature of Social Rights 40
4.1.1 Justiciability of the Right to Food 41
4.1.2 The issue of justiciability 42
4.2 The Right to Food under the EU-EAC EPA; is it justiciable? 45
4.2.1 At National Level: the Constitutionalisation of the Right to Food 46
4.2.2 Regional Level: the African Commission 49
4.2.3 The UN Committee on Social Economic and Cultural Rights 51
4.2.4 The Optional Protocol to the ICESCR 53
4.3 Obstacles to the justiciability of the right to food. 55

Chapter Five
5. Conclusions and Recommendations 57
5.1 Conclusions 57
5.2 Recommendations 58

II
Acknowledgement

This piece of work would not have been possible without the financial and social support of
my sponsors and family Mr. and Mrs. Kjell & Angelline Kroken. I would like also to
extend my thanks to the University of Oslo for both their academic and administrative
support. I also wish to extend my sincere gratitude to my supervisor, Malcolm Langford for
the excellent guidance afforded to me during this thesis writing.

III
Acronyms
ACP African Carribean and Pacific
EEC European Economic Community
EU European Union
ACTADE African Centre for Trade and Development
AU African Union
CAMEF Conference of Ministers of Economy and Finance
CPA Cotonou Partnership Agreement
EAC East African Community
EPAs Economic Partnership Agreements
EBA Everything But Arms
ECOSOC Economic and Social Council
ESCR Economic Social and Cultural Rights
FAO Food and Agricultural Organisation
FTA Free Trade Agreement
GATT General Agreement on Trade and Tariffs
IMF International Monetary Fund
ICESCR International Covenant on Economic Social and Cultural Rights
LDCs Least Developed Countries
MFN Most Favoured Nation
RTA Regional Trade Agreements
WTO World Trade Organization

IV
V
 CHAPTER ONE

1 Introduction
Economic Partnership Agreements (EPAs) are regional trade agreements between the
European Union (EU) and African, Caribbean and Pacific countries (ACPs). The African,
Caribbean and Pacific Group of States (ACP) are an organisation created by the
Georgetown Agreement in 1975. It is composed of African, Caribbean and Pacific States to
the Georgian Agreement or the Partnership Agreement between the ACP and the European
Union, officially called the ACP-EC Partnership Agreement or the Cotonou Partnership
Agreement (CPA).1

Under this Cotonou Agreement, the EU extended non-reciprocal market access (charging
less/no import taxes on similar products imported from elsewhere) to East African
Community (EAC)2 countries exports to the EU market for the last 28 years.3 The
Objectives under this agreement included poverty eradication, sustainable development and
the gradual integration of the ACP countries into the world economy. This non-reciprocal
treatment was however under a waiver given to the EC by the WTO Members which
expired on the 31st of December 2007.4

This leads to the link between the WTO and the birth of EPAs. This came with need to
ensure that the trade relationship between the EU and ACP is in line with current WTO
rules.5 That since 1976 agreement between the EU and ACPs had allowed ACP countries
one way access to EU markets meant that while ACP producers are able to export to the

1
ECDPM. 2002.

2
The East African Community (EAC) countries include; Uganda, Kenya, Tanzania, Burundi and Rwanda.

3
Twineyo (2006) p.5; Elly R. Twineyo is a senior analyst in African Centre for Trade and Development
(ACTADE) Uganda.

4
ibid 2 above

5
CPA articles 36 and 37

1
EU, they have remained protected from European competition at home.6 Thus the EC had
to bring her trading relations in conformity with the non-discriminatory principle among a
countrys trading partners and also include the rule on reciprocity.

In 2004 Uganda launched her EPA negotiations with the EC under ESA and later under the
newly formed EAC Customs Union.7 The Framework EPA contains Market Access offers
made by the EAC and the EC where the EC market access offer consists of duty free and
quota free access to imports from the EAC Partner States. The EAC market access offer to
the EU consists of 82% liberalisation of imports from the EU over a 25 year transition
period (64% in 2010, 16%in 2023 and 2% in 2033). On the other hand Uganda intends to
exclude 18% of her imports from the EU from her commitments through the
Exclusion/Sensitive List.8

The negotiations between the EAC and the EU includes among other sectoral areas,
Agriculture. The current issues discussed are the improvement of access for ACP countries
exports to the EU market and the liberalisation of the European agricultural and food
products imported to these countries. It is foreseen that the EPAs will deeply modify the
ACP-EU agricultural trade regime. As a result ACP countries are trying to establish
sensitive products list mainly under agricultural products.

Trade liberalisation in agriculture as much as it fosters market access and increases

government income through customs duties could adversely affect a countrys Human
Rights status especially the Right to Food.9 According to a report from FAO study in 1999
found that policy reforms and the associated increase in food imports have put pressure on
the domestic scene affecting rural employment. A majority of products imported from the
EU are directly in competition with the ACP sectors of production of the food of the local

6
ibid note 2 above

7
ibid note 4 above

8
http://www.mtti.go.ug/EPA.pdf

9
Twineyo 2006 p.5; Elly R. Twineyo is a senior analyst in ACTADE Uganda.

2
populations. According to Jean Ziegler, UN Rapporteur on the Right to Food estimated that
upto 15 million Mexican farmers and their families may lose their livelihoods as a result of
the North American Free Trade Agreement (NAFTA) and competition with subsidized
United States maize.10 The EAC countries are also at risk of facing the same as the EU
moves away from price to income support of EU farmers. There is therefore the need for
the EPAs negotiators to reconsider the new trade terms and their implications on the human
rights.

This thesis will therefore look at the legal framework of the EPA with the interest of
resolving the issue whether the free trade agreement is actually in conformity with the
relevant WTO law provisions. This will include an analysis of the content of the EPA, its
general relationship with WTO law and some of the issues that have arisen in negotiations.
Furtherstill this paper will go on to look at the controversial issue of the interim trade
agreement in relation to human rights. This will involve an in depth discussion on the
following; whether human rights are relevant under trade law that is, EPAs and if so to
what extent have they been incorporated in the EU EAC EPA Framework (special focus
being on the right to food. The reason for choosing this particular human right is that most
ACP countries, EAC countries inclusive are agro- based therefore the right to food is
paramount). The previous discussion will help lead to a critic on whether EPAs are a tool in
the realisation of the right to food or not.

1.1 Research Questions

The following are the intended research questions;

- What is the status of the EPA under the WTO law?

- What is the legal relation between the Right to Food and the EPA?
- What are the international and national legal mechanisms available for challenging an
EPA on the basis of a violation of the right to food?

10
Fidh (2006)

3
1.1.1 Objective of the Study
The study will depict a legal analysis of the relation between two regimes under
international law that is Trade law and Human Rights law in light of the EPA. This will
also lead to how trade does actually affect human rights in the long run. Inspite of the
economic cooperation between ACP and the EU under the EPA and the Cotonou
Agreement there has not been any significant transformation of the ACP countries,
including some EAC countries as Uganda. Uganda is still categorised as a least developed
country and having issues with access to adequate food.

1.1.2 Methodology and Sources

This study will be a legal analysis of the EPAs. The Primary sources will include the
interim EPA agreement, the Cotonou Agreement , the relevant WTO Agreements AoA,
GATT, and the UN Convention on Economic Social and Cultural Rights. Also regional
instruments such the as Pretoria Declaration, African Commission on Human and Peoples
Rights, EC Treaty (Article 177) and the Treaty of the EAC. An assessment will also be
borrowed from case studies of other trade treaties and their impact on human rights.
Writings of authors on the relevant research topics will also borrowed. Appropriate
websites will also be an added source.

1.2 Delimitation of the thesis

1.2.1 Delimitation
The study will be limited to a discussion of the EPA and the human right to food. A
comparative study including other regional EPAs negotiated and/or signed will be included
too. The EU EAC EPA discussion will be centred around the WTO/GATT 1994 law plus
other cover agreements such as Agreement on Agriculture. On the human rights subject, it
is foreseen that alot of issues especially on the discussion of human rights will unfold such
as the legal interpretation of human rights in the international law as a whole. However,
emphasis will only be placed in the interpretation of the right to food as stated in the
International Covenant of Social Economic and Cultural Rights which indeed is the main

4
legal instrument under international law. Other accompanying instruments which will also
be referred to include the General Comment NO. 12 on the right to adequate food and other
documents from the Committee of social, economic and cultural rights.

1.2.2 Structure
Chapter one will be an introduction to this work, that is, research objectives, sources and
the methodology used. A delimination and structure of the thesis will be inclusive. Chapter
two includes a discussion EPAs and WTO law system. Chapter three is on the legal relation
between EPAs and the Human Right to Food. Chapter four will be on the justiciability of
the Right to Food under the EPAs. Lastly chapter five will be on the conclusions and
recommendations of the thesis study.

5
 CHAPTER TWO

2 EPAs and the WTO

Equality of States under general public international law refers that States are free to enter
any agreement. There is no general obligation to treat all States alike.11 It has therefore
been a practise of States for many years to conclude preferential and discriminatory trade
agreements in the form of Regional Trade Agreements. The proliferation of customs
unions, free trade agreements and other preferential arrangements in the last fifteen years
has led to a situation in which much of world trade is not conducted in accordance with the
MFN (Most-Favoured-Nation) treatment obligation.12 Under the WTO law therefore, there
are specific provisions on Regional Trade Agreements (RTA) that have to be fulfilled in
order to attain to a recognised and unchallengeable RTA.
The European Union and the ACP countries in their effort to strengthen their relations have
agreed to establish a new trade agreement that is in conformity with the WTO rules, that is
EPAs.13 The new arrangement is based on the Cotonou Partnership Agreement (CPA) and
is a major departure from the previous trade arrangements. Under this the EU is meant to
conclude RTAs with the ACP countries in form of free trade areas.

The purpose of this chapter is to discuss the content of EPAs under the parent agreement
(CPA) and the relevant interpretation and applications of the WTO law provisions to the
EPAs.

11
Bartels (2006) p. 43

12
Bossche (2008) p.323 By July 2005 only one WTO Member- Mongolia- was not party to a regional trade
agreement.

13
EC Council Decision, SEC (2002) 351 Final

6
2.1 Historical background
ACP-EEC Cooperation dates back to the Treaty of Rome that established the European
Economic Community (EEC) in 1957. In it, the signatories expressed solidarity with the
colonies and overseas countries and territories and committed themselves to contribute to
their prosperity. The first association of ACP and the EEC countries took shape through the
Yaounde I (1963-69) and Yaounde II (1969-75) agreements, named after the city where
they were signed. Economic cooperation was the main motive.14

Later the Lome I agreement between 46 ACP countries and then 9 EEC member states
(1975-80) gave way to the effective creation of the ACP group.15 The Georgetown
Agreement, the ACPs fundamental charter, which was signed in 1975 at the time the First
Lome Convention came into force, laid down the rules for cooperation between the
countries of three continents, the main link being shared aid from European Union.
Reviewed and updated every five years, successive Lome Conventions represented the
world's largest financial and political framework for North-South cooperation.

The Lome Convention was considered as a highly innovative model of international

cooperation. They granted non-reciprocal trade benefits to ACP countries, and also
included more innovations like the protocols on agricultural products in particular the
banana protocol that gave duty-free entry to the EU market for specific quota of bananas
and has been a lifeline for many small Caribbean states. The nature of ACP-EU
cooperation under the Lome Convention changed quite profoundly, after 1990. The special
relationship with the ACP came under growing pressure as a result of trade liberalisation.
Also the Lome trade regime was increasingly challenged for reasons of both effectiveness
and political acceptability. Despite preferential access to EU markets, ACP export
performance had deteriorated over the last two decades and 40 out of the 77 ACP countries
were still categorised as least developed. In addition to this, the Lome trade provisions

14
ECDPM. (2002)

15
ibid

7
were seen to be 'incompatible' with the new international rules agreed through the World
Trade Organisation (WTO).16 The EU nevertheless managed to obtain a waiver for Article
1 of the GATT which was meant to expire on the 29th February 2000.17

With such a range of pressures on the Lome partnership, the EC took the initiative in 1996
to launch a broad-based consultation process on the future of ACP-EU cooperation. This
process led to the so-called 'Green paper' (1996) and set the scene for the negotiations of a
successor agreement1998-2000.18 From the outset of the negotiating process, it became
clear that the new round would not be business as usual. From an EU perspective, the
imperatives were to apply greater aid selectivity and differentiation in the treatment of ACP
countries; to link aid and performance; and to make the trade regime 'compatible' with the
requirements of the WTO. Evidently, this agenda caused major worries among the ACP
countries. They feared most importantly, the loss of preferential access to EU markets.
Negotiations formally started in September 1998 and were concluded in February 2000. A
new Partnership Agreement was signed in Cotonou, Benin in June 2000.19

The Cotonou Partnership Agreement by its very existence, represents a significant success
for the ACP Group.20 It was forged from the Groups determination to maintain its
solidarity. One of its main concerns is the removal of non-reciprocal trade preferences
granted with ACP countries. Therefore EPAs as new trade arrangements will be negotiated
between the European Union and ACP countries. The transitional phase of ACP-EU to the
new trade arrangements from 2000-2007 required the approval of the WTO.21 In

16
SEATINI-Uganda (2008) p.23

17
Pelzman (1999) As a result of the banana trade dispute, the Community and the ACP countries applied to
the GATT Council for a waiver of the Lome IV Convention. The waiver was issued in Dec of 1994. Article
XXV (5) of the GATT provides legal basis for a waiver.

18
ibid note 14 above

19
ibid

20
ibid

21
ibid

8
November 2001, at the 4th WTO Ministerial Conference, the ACP Group and their EU
partners obtained another WTO waiver for the arrangements established under the Cotonou
Agreement.22

The negotiations on EPAs were launched in Brussels on 27 September 2002. At the

opening session an agreement was reached to sequence the negotiations in two phases. The
first phase would take place at an all- ACP-EC level and would address horizontal issues of
interest to all parties. At the First Joint Annual Meeting held in Addis Ababa it was agreed
by the parties that the second phase would be at the level of ACP countries and regions,
and would address specific commitments.23 According to the International Policy Council
by negotiating EPAs with groupings engaged in a regional economic integration process,
the EPAs seek to cement South-South integration into South-South-North integration.24
(Six separate EPA negotiations have since been taken up under Article 37.5 of the CAP in
the following regional economic communities (REC) as building blocks; Economic
Community of Central African States (ECCAS), the Common Market of Eastern and
Southern Africa (COMESA), the Southern African Development Community (SADC), the
Economic Community of West African States (ECOWAS), in the Caribbean and lastly
Pacific Forum in the Pacific countries (CARICOM)). From this it is understandable that the
legal parties to the EPA agreements are the EU on one side and the various ACP regional
groups on the other. An exception lies where the EU could negotiate EPAs with individual
ACP countries.25

22
WT/MIN (01)/15

23
UN Doc. E/ECA/COE/27/12a.

24
IPC Issue Brief 23 (2007)

25
Emphasis is further placed in Article 35.2 of the CPA that economic and trade cooperation shall build on
regional integration initiatives of ACP States, bearing in mind that regional integration is a key instrument for
the integration of ACP countries into the world economy.

9
2.1.1 EAC and EPAs

The EAC signed an interim agreement with the EU in November 2007.26 At the beginning
of these negotiations Kenya and Uganda were part of the Eastern and Southern Africa
(ESA) configuration, and Tanzania was negotiating under the Southern Africa
Development Community (SADC). As negotiations for the EPAS progressed it became
apparent that they could not be concluded under different configurations without
compromising the union. With the 2007 accession of Burundi and Rwanda, four of the
EAC partner states were negotiating the EPAs under ESA, while one under SADC. The
negotiations between EAC and EC are at an advanced stage, with a target of signing the
final EPAs by July 2009.27
In as much as negotiating at the regional level is an essential feature of this approach, there
remains a problem in explaining the effect of the EPAs. This arises from the fact that there
is a patchwork of pre-existing trade systems in place between the EU and the EAC. The
EAC has parallel access to the EU market with the help of the generalised system of
preferences (the GSP) that is available to all developing countries. It also offers the least
developed countries (LDCs) duty and quota free access to all products except arms, called
the Everything But Arms access (EBA). Thus effectively, both the Cotonou trade regime
and the EBA trade regime were available to Uganda from 2001 by virtue of Uganda being
both a member of the ACP Group and LDC.28 Uganda decided to negotiate under the EPA-
Cotonou trade regime due to the fact that EBAs are unilateral. In such a case of EBAs, they
are not negotiated but rather handed down under the given terms and conditions decided by

26
Having regard to the decision of the EAC Summit held in Kampala, the EAC negotiating as a bloc for the
purpose of negotiating an EPA with the European Union and the WTO. Preamble to the EU-EAC-EPA
interim Agreement.

27
According to CPA, negotiations for EPAs should have been finalized by 31 December 2007.
On this day, the waiver granted by WTO for the continuation of Cotonou preferences expired and
was supposed to be replaced by a WTO compatible regime starting 1 January 2008. By deadline of 31
December 2007, none of the African Negotiating groups was able to conclude a full EPA.

28
http://www.mtti.go.ug/EPA.pdf

10
the EU.29 The second reason falls under the unfavourable rules of origin under the EBA.
Under EBA cummulation is only between the beneficiaries, that is, LDCs and the EU. If a
Ugandan exporter therefore uses inputs sourced from Kenya, a non LDC, that beyond a
certain threshold, that exporter loses preferential treatment under EBA. The exporter
would have to pay the normal taxes levied on like products from other countries such as
Brazil as long as such countries do not have a preferential trade agreement with the EU. On
the other side, the CPA, provides that such a product would be eligible for preferential
treatment since Kenya is a member of the ACP.30 This is advantageous being that Uganda
is a partner with Kenya in the EAC-EU-EPA.

Another effect is the fact that different regional EPA negations have addressed issues
peculiar to them or of their own interests. This has brought in the need to harmonize these
agreements across the different regions. If one was to use the Cariforum-EU full EPA as a
pointer, negotiations for comprehensive EPAs as envisaged by the EC side, will cover
controversial areas that African countries have had considerable discomfort. In particular,
the issues of competition, government procurement, and investment, as well as intellectual
property, environment, labor standards, data protection, liberalization of the capital
account, and to some extent the area of services will come into sharp focus. These areas
have been included in the full Cariforum-EU EPA, and in the SADC-EU EPA. This is
likely to be a source of pressure on the African groups to adopt extensive or substantive
commitments different from the positions adopted by developing countries including
Africa at the WTO negotiations and during the earlier phases of EPA negotiations.31
It has also been argued that the regional integration objective of EPAs has not been
achieved in the interim agreements. In the SADC region, EPAs have brought in more
problems to the integration process. Taking for instance what is happening in the Southern

29
ibid

30
Economic rationales for concluding preferential agreements include the search for larger markets and
deeper integration, in particular among neighbouring countries (further discussion see Bartels 2006, Pg 45-
46).

31
UN Doc. E/ECA/COE/27/12a.

11
Africa Customs Union (SACU) was South Africa, a significant player in that customs
union has not signed an Interim Agreement with EU while other members of the Customs
Union have done so. Ideally, a customs union should have a single trade agreement with all
trading partners. A situation now exists where members of the same Customs Union are
trading with the same external partner using different agreements.

Likewise Parliamentarians are pressurising Uganda to revoke the interim trade agreement
signed between the European Union and the East African Community.32 The Ugandan MPs
claim the partial Economic Partnership Agreement (EPA) signed at the close of last year
entrenches unfair treatment of the five-member bloc. Uganda currently chairs the
Community, and it is believed that Kampala spearheaded the negotiations that led to the
agreement, also signed by Kenya, Tanzania, Rwanda and Burundi. The interim agreement
covers areas of market access, development and fisheries and contains a commitment to
negotiate a wide range of trade-related issues by July 31, 2009. It is a bad agreement. It
does not favour East Africa. Uganda should pull out. We have to revoke the agreement and
renegotiate. That is what we are recommending, said Felix Okot Ogong, a member of the
Parliamentary Committee on Trade, Industry and Tourism.33 The committee is presently
evaluating the significance of the trade relationship with EU. This follows a petition from
over a dozen civil society groups. We are negotiating for permanent poverty for our
people, MP Charles Agiro, also a member of the parliamentary committee. The MPs have
particularly expressed concern that opening up the regional market fully will attract
dumping that could undermine local producers. Oxfam, one of the petitioners, claims the
new trade deals between Europe and the Africa, Caribbean and Pacific countries will
fracture regional integration, exacerbate poverty and make it harder for countries to break
away from commodity dependence. Initially, the aim of the talks was to conclude EPAs,
which would promote poverty reduction, sustainable development and gradual integration

32
Kazooba (2008)

33
ibid

12
of ACP countries into the world economy and further bolster regional integration. The talks
have been criticised by the African Union, the UN, the World Bank, farmers and the
business community, who claim that in practice the trade deals will strip ACP countries of
the very tools they need to develop.34

2.2 EPAs and WTO Compatibility

WTO conformity requires that barriers to trade be dismantled on both sides, introducing an
element of reciprocity into trade relations between the EU and the ACP states for the first
time.35 In Article 36 paragraph 1 of the Cotonou Agreement the parties to the agreement
agreed to conclude new World Trade Organisation compatible trading arrangements,
removing progressively barriers to trade between them. This meant that the only way the
EU would retain its preferential treatment with the ACP countries was through adopting
free trade areas.36 Two WTO rules are most relevant to this end; firstly, that on regional
trade agreements (RTAs) stipulated under Article XXIV of GATT 1994 and secondly, the
special trading arrangements involving developing countries, referred to as Enabling
Clause. Given the specific application of these rules is subject to interpretation there is
legal uncertainty as to the conclusion of WTO compatible trading arrangements such as
EPAs.37

2.2.1 Article XXIV- Interpretation and Application

According to Article XXIV of the GATT customs unions and free trade areas are exempt
from the most favoured nation (MFN) principle.38 However, such an arrangement must not

34
http://www.pambazuka.org/aumonitor/comments/1226

35
MFN principle of non discrimination

36
See EC Council Decision, SEC (2002) 351 Final , 2nd paragraph

37
FAO (2006)

38
GATT 1994 Article XXIV.4 states that, the contracting parties recognise the desirability of increasing
freedom of trade by the development, through voluntary agreements, of closer integration between the
economies of the countries parties to such agreement.

13
increase existing levels of trade restrictions affecting non-member countries. The current
state of WTO law demands that EPAs satisfy the requirements of GATT Article XXIV on
FTAs.39 This will initially take the form of interim agreements leading to the formation of
FTAs as envisaged under GATT Article XXIV: 5, in which case the parties are required to
include a plan and schedule for the formation of such a free-trade area. There are two
important provisions enshrined in Article XXIV affecting the legality of EPAs under
international law. The first is to the effect that substantially all the trade between the
parties must be liberalised.40 The second refers to time in which the referred liberalisation
occurs.41 The former requirement is actually meant to live up to the principle of reciprocity
under the WTO; that is, the EU opens up to ACP-produced goods; and in return, the ACP
states open themselves up to EU exports.

There is no definite interpretation on substantially all trade.42 Thus in the absence of clear
guidance from WTO Dispute Settlement Mechanism and the WTOs Committee on
Regional and Trade Agreements (CRTA), interpretation has been left to individual WTO
members. The European Commission interprets the substantially all trade provision as a
liberalisation of around 90 percent on average of the total value of trade between the
parties. Uganda as a member of the EAC is liberalising 82% of imports from the EU over a
25 year transition period.43 As the requirement is under XXVI GATT to liberalise
substantially all trade this allows ACP countries to exempt sensitive products (SPs) from
liberalisation. Most of these countries have gone on to include agricultural products on

39
GATT Article XXIV.8 (b) defines an FTA as to mean a group of two or more customs territories in which
the duties and other restrictive regulations of commerce are eliminated on substantially all the trade between
the constituent territories in products originating in such territories.

40
GATT 1994 Article XXIV 8(b)

41
GATT 1994 Article XXIV 5(c), which states that, any interim agreement...shall include a plan and
schedule for the formation of such a...free trade area within a reasonable length of time.

42
FAO (2006)

43
ibid

14
their SPs. When agriculture is excluded from FTA liberalisation process completely or
when it is subjected to a lower level of liberalisation-the question has been whether any
such FTA satisfies the GATT Article XXIV: 8(b) requirement that duties and other
restrictive regulations of commerce be eliminated on substantially all the trade between
the constituent territories in products originating in such territories.
According to the Understanding on the Implementation of Article XXIV of the General
Agreement on Tariffs and Trade 1994, the reasonable length of time" referred to in
paragraph 5(c) of Article XXIV should exceed 10 years only in exceptional cases. In cases
where Members parties to an interim agreement believe that 10 years would be insufficient
they shall provide a full explanation to the Council for Trade in Goods of the need for a
longer period. The ACP countries have leaned on the CAP agreement Article 36, that EPAs
should bring about a smooth and gradual integration of the ACP courtiers into the world
economy. Further that Article37.7 goes to say that account should be given to the level of
development and the socio-economic impact on trade measures on the ACP countries and
their capacity to adapt to and adjust their economies to the liberalisation process. Uganda
has agreed on a 25year transition period. Many FTAs have adopted longer implementation
periods and have not been challenged.

Suffice to note is the fact that the EU is following a more flexible interpretation of Article
XXIV in the sense of concluding FTAs while maintaining SDT for the ACP countries.44
The ACP group submitted a formal proposal to the WTO to introduce Special and
Differential and Treatment principles in GATT XXIV specifically on substantially all the
trade: appropriate flexibilities were proposed - on duties and measurement of trade and
product coverage, allowing asymmetric lower levels for developing countries, and flexible
interpretation on "other restrictive regulations of commerce", allowing contingency
protection measures including safeguards and other no tariff measures (e.g. rules of origin)

44
ODI-ECDPM (2006) Also CPA Article 37.7 provides that negotiations will be as flexible as possible in
establishing the duration of a sufficient transitional period, the final product coverage, taking into account
sensitive sectors, and the degree of asymmetry in terms of timetable for tariff dismantlement, while remaining
in conformity with WTO rules then prevailing.

15
on intra regional trade.45 On reasonable period of time": a longer time period was also
proposed that is consistent with the trade, development and financial situation of
developing countries, that is, not less than 18 years.46 In May 2005, the EC, in its own
submission on RTAs to the WTO made explicit reference to the above ACP proposal and
called for similar changes in GATT Article XXIV on RTAs to allow greater flexibility in
North-South RTAs.47 Axel Borrmann et al (2006)48, have in their discussions raised a
similar question, that is, should special and differential treatment concerning the breadth
and depth of trade liberalisation between developing and developed countries, as well as its
timing, be explicitly incorporated into Article XXIV in order to enhance the development
impact of North-South agreements such as ACP-EU EPAs and thus ensure their
compatibility with the multilateral system? This remains for the WTO Ministerial
Conference to resolve.49

2.2.2 EPAs and Enabling Clause

The Enabling Clause (Special Treatment provision) provides for the possibility of
developing countries forming regional or global preferential arrangements among
themselves without satisfying the requirements of Article XXIV on FTAs and CUs.50 EPA
on the other hand brings two different countries together that is the developed and
developing countries in establishing closer regional integration. Cotonou obliges the parties

45
ODI-ECDPM (2006)

46
Borrmann (2006) p. 118

47
ODI-ECDPM (2006)

48
Borrmann (2006) p. 115

49
WTO Marrakech Agreement Article IV: 1 The Ministerial Conference shall have the authority to take
decisions on all matters under any of the Multilateral Trade Agreements

50
W/L/4903) para 1 states that contracting parties may accord differential and more favourable treatment to
developing countries without according such treatment to other contracting parties. Para 2 states that, the
provisions of para 1 will apply to (c) Regional or global arrangements entered into amongst less-developed
contracting parties... (d) Special treatment on the least developed among the developing countries...

16
to the EPA negotiations to conclude only WTO-compatible FTAs.51 Given that the EPAs
are being negotiated between the developed EU and the developing ACPs, by definition
this means FTAs as envisaged under GATT Article XXIV. The option available for South-
South cooperation in the form of RTAs under the Enabling Clause is simply not available
for RTAs between developed and developing countries. They have to be concluded in
compliance with GATT Article XXIV. The ACP Group of countries within the WTO are
proposing changes to GATT Article XXIV as part of the Doha negotiations, so that options
similar to those provided by the Enabling Clause would be extended to North-South
FTAs.52

Further still, under the Enabling Clause, tariff preferences granted by developed countries
must not discriminate among developing countries, except for the possibility of providing
more generous preferences to all least-developed countries. Specific preferences for limited
groups of developing countries granted by individual developed countries, such as those
granted by EU to ACP countries under the Lome Convention, are not covered by the
Enabling Clause.53 For a long time no objections were raised in GATT to these specific
preferential schemes, and it was not completely clear whether they were (implicitly)
considered to be legal.54 It was not before the first GATT panel on the EU import regime
for bananas in 1993 that an explicit decision was taken on the issue. The panel found the
EUs preferences for banana imports from the ACP countries inconsistent with GATT
Article I, and also with GATT rules on free-trade areas, stating that Part IV of the GATT
did not provide a justification for non-reciprocity in free-trade areas involving developing
55
countries. The Enabling Clause did not provide a shelter for these ACP preferences as

51
CPA article 37.5

52
FAO (2006)

53
ibid

54
ibid

55
Pelzman (1999)

17
they were not extended to all developing countries. By implication that meant that all
specific EU preferences for the ACP countries, and all other similar schemes of other
developed countries, were to be considered illegal under the GATT. In response to this
panel outcome, rather than eliminating its trade preferences under the Lome Convention,
the EU requested a GATT/WTO waiver that would allow it to continue to provide the
special trade preferences to the ACP countries. That waiver was indeed granted in 1994, for
a period lasting until the expiration of Lome IV, i.e. 29 February 2000.56

2.3 EPAs and the Agreement on Agriculture (AoA)

The initial post independence relationship consisted of one-way trade preferences in which
the EU would allow certain ACP imports into the EU market on preferential terms. The
ACP side was not required to give EU exports similarly favourable treatment.57 The trade
preferences were meant to benefit the largely agricultural economies of the ACP states.
These preferences saw a variety of protocols covering trade in beef, veal, bananas and
sugar.58 However, over the years the EU-ACP preferences were challenged largely by Latin
American WTO members with the active encouragement of the USA in the EC- Banana III
(US) and the European Communities-Regime for the Importation, Sale and Distribution of
Bananas. Banana producing USA multinational corporations with Latin American
operations were incensed by the fact that the EU-ACP preferences were giving ACP
bananas an unfair advantage. The resulting WTO ruling exposed the EU-ACP preferences
as inconsistent with the WTO requirements. This only added pressure on the EU to shift its
trade relations with its former colonies to produce a new trade regime.59

56
ibid

57
ibid

58
Lome IV Convention

59
Pelzman (1999)

18
Under WTO, main purpose of formulating the AoA arose from the need to regulate
agricultural trade.60 Such distortions in the world market was characterised by massive
internal investment and support for agriculture production coupled with even more
restrictions on agricultural imports. The heavy subsidisation led to structural surpluses and
this in return led export subsidies to dump the surpluses on the world markets.61 This
situation in the longer run affected farmers from poorer nations.62 Today Europe still
maintains its agricultural subsidisation programme on agricultural products.63 The long
term objective as agreed at the Mid-Term Review of the Uruguay Round is to establish a
fair and market oriented agricultural trading system and that a reform process should be
initiated process through the negotiation of commitments on support.64 That long term
objective is to provide for substantial progressive reductions in agricultural support and
protection sustained over an agreed period of time resulting in correcting and preventing
restrictions and distortions in the world agricultural markets.65

On the other hand the Doha Declaration reaffirmed the process of reducing trade
restrictions and distortions in world agricultural markets and the principle of special and
differential treatment for developing countries. It further undertakes to ensure developing
country needs, including food security and rural development in all negotiations and
agreements.66

60
AoA preamble

61
Plahe (2007)

62
ibid

63
Ibid. EU alone spends US 120 billion dollars a year on domestic support

64
AoA preamble

65
ibid

66
Doha Declaration article 13

19
The framework EU-EAC EPA negotiations on agriculture are still ongoing and the EAC
party is reluctant to conclude till the end result of the Doha discussion on agriculture is
seen.67 One of the concerns is that even if the EPA negotiations result in the reduction or
elimination of all tariffs on ACP agricultural products, the probability of ACP countries
exploiting such an opportunity is limited due to high SPS standards applying in the EU.68

CARIFORUM69 on the other hand has been able to achieve the insertion into the
Agreement of a full chapter on Agriculture and Fisheries. Chapter 5 of Title I of Part II of
the Agreement sets out the objectives, which include sustainable development and
exploitation, and increased competitiveness, and special mention, is made of the
contribution of these sectors to poverty eradication, food security and diversification.70 On
export subsidies the Agreement commits the EU to the elimination of export subsidies on
all agricultural products for which CARIFORUM has agreed to eliminate tariffs. This will
be done according to modalities to be agreed at the level of the Trade & Development
Committee of the EPA.71 CARIFORUM will not be required to eliminate any export
subsidies that are applied in accordance with its rights under the WTO/AoA and Agreement
on Subsidies and Countervailing Measures.72 Uganda on the other hand in its negotiations
has made Sensitive Products List which includes an 18% of Ugandas agricultural imports
from EU being excluded from liberalization. Care was also taken to include products
subsidized by the EC.73

67
FAO (2006) Chapter V article 37 of the EU-EAC EPA Framework Agreement mentions agriculture as one
of the future areas of negotiations.

68
Ibid

69
CARIFORUM (Carribean Integration) signed a full EPA on the 15 October 2008

70
http://www.sice.oas.org/TPD/CAR_EU/Studies/CRNM_achievements_agriculture_e.pdf

71
ibid

72
ibid

73
http://www.mtti.go.ug/EPA.pdf

20
Preference erosion is also an ongoing debate in the Doha Ministerial Round. It is foreseen
that the erosion of preferences will result in significant losses for Least Developed and for
African and Caribbean countries.74 Preference erosion is not a good reason to stop the trend
towards multilateral liberalization, but how to offset the adverse effects for the affected
countries needs specific consideration, including possible compensation. Some studies
suggest that ACP countries could lose more than 2 billion dollars from preference
erosion.75 The EU Agricultural Trade Policy has been heavily characterized by preferential
treatment of agricultural products from the ACP countries. This has however, come under
the attack of WTO Members critics forcing the EU to reform its Policy to conform to WTO
rules.76

74
Yang (2005)

75
ibid

76
Pelzman (1999)

21
 CHAPTER THREE

3 EPAs and the Human Right to Food

Human Rights obligations are of a particular importance in international law. The UN

Charter also known to be the world constitution77 also makes an explicit recognition of
human rights in Article 1(3) and Article 55.78 The two trade partners under the EU-EAC
EPA agreement are also members of the UN and have gone on to express their respect of
human rights under their constituent treaties. The EU as such under Article 6 (ex Article F)
of the Treaty of the European Union states: The Union shall respect fundamental rights, as
guaranteed by the European Convention for the Protection of Human Rights and
Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the
40 constitutional traditions common to the Member States, as general principles of
Community law. Likewise the EAC Partner States have made a lot of gains in promoting
and protecting human rights both at national, continental and international level. At
national level, Partner States have established National Human Rights Commissions and
have all signed and ratified the African Charter on Human and Peoples Rights (ACHPR)
which is also adopted by the EAC under Article 6 (d) of the Treaty as the basis for the
fundamental principle of promoting and protecting human rights in East Africa. The EAC
is in the process of formalising a regional plan of action on promotion and protection of
human rights including the establishment of a Bill of EAC of Rights. On the other hand it is
important to note that the EU is not a party to the 1966 (ICESCR) International Convention
on the Social, Economic and Cultural rights.79

77
UN Charter article 103

78
UN Charter article 55(c) states, the United Nations shall promote: universal respect for and observance
of human rights and fundamental freedom for all Article 56 goes on to state that, All Members pledge
themselves to take joint and separate action in cooperation with the Organisation for the achievement off the
purposes set forth in Article 55.

79
Vandenhole (2007) p.98

22
This chapter shall discuss the right to food with emphasis placed on its legal relationship
between the ICESCR and the EPAs trade agreements. Notably in various discussions is that
there exists a conflict between the two legal regimes; trade law and human rights.80 Thus a
question remains on the relevance of human rights in trade law and how far have they have
been incorporated in the various trade treaties such as the EPAs in this instance in a bid to
reconcile the two; which shall also be resolved in this chapter. Also of importance is the
impact of the EPAs on the right to food in ACP regions as EAC.

3.1 The Right to Food

The right to food is a human right and is a binding obligation in accordance to international
law as recognised in the Universal Declaration on Human Rights and the International
Covenant on Social, Economic and Cultural Rights, as well as many other treaty laws.81
The International Covenant on Economic, Social and Cultural Rights reads in Article 11:
1. The States Parties to the present Covenant recognize the right of
everyone to an adequate standard of living for himself and his family,
including adequate food, clothing and housing, and to the continuous
improvement of living conditions. The States Parties will take appropriate
steps to ensure the realization of this right, recognizing to this effect the
essential importance of international co-operation based on free consent.
2. The States Parties to the present Covenant, recognizing the
fundamental right of everyone to be free from hunger, shall take,
individually and through international co-operation, the measures,
including specific programmes, which are needed...

The right to adequate food has been defined under the General Comment No.12 of the
Committee on Economic, Social and Cultural Rights as; the right of adequate food is
realised when every man, woman and child, alone or in community with others, has
physical and economic access at all times to adequate food or means for its procurement.82

80
Bartels (2006) pp. 284-309 for further discussion.

81
Pursuant to the UN Conferences in particular the 1996 Rome Declaration on World Food Security and
World Food Summit Plan of Action, together with the Committee on Economic, Social and Cultural Rights.

82
UN Doc E/C.12/1999/5.para 6, accordingly, the right to food shall not be interpreted in a narrow and
restrictive sense which equates it with a minimum package of calories, proteins

23
It goes further to mention that, Economic accessibility shall include personal or household
financial costs associated with acquisition of food should be attainable at a level where
other rights are not threatened.83 Physical access on the other hand implies that adequate
food must be accessible to everyone, including physical vulnerable individuals, such as
infants and young children...84
Like any other right, the right to food imposes three types of obligations on the States
parties; the obligations to respect, protect and to fulfil.85 The obligations to respect entails
taking measures that result in preventing such access while protection requires measures to
ensure that enterprises or individuals do not deprive individuals of their access to adequate
food. Fulfilment requires a pro-active engagement in activities intended to strengthen
peoples access to and utilization of resources and means to ensure their livelihood86,
including food security. Finally, whenever an individual or group is unable to enjoy the
right to adequate food by the means at their disposal, States have the obligation to fulfil
(provide) that right directly.87

Haugen 2007, in his analysis on the right to food, states that Article 11.1 recognises the
right to food within the context of the right to an adequate standard of living, while Article
11.2 recognises the right to be free from hunger per se. According to him adequate
standard of living refers to a situation in which the necessary basic needs are met, in order
for a person to be able to exercise his or her rights. Concerning food it means a minimum

83
It should be noted that the right to food is considered a social right a category which includes the right to
highest attainable standard of health (ICESCR Article 12), education(Articles 13 and 14) , and housing
(Article 11). The Committee affirms that the right to food is indivisibly linked to the inherent dignity of the
human person and is indispensable for the fulfilment of other human rights enshrined in the Bill of Human
Rights.(General Comment No. 12 paragraph 4)

84
UN Doc E/C.12/1999/5

85
Haugen (2007) p.116

86
ibid note 84 above

87
UN Doc E/C.12/1999/5.para 15.

24
daily intake measured in standardized and objective measures.88 The ESCR Committee
has gone on to state that, the precise meaning of adequacy is to a large extent determined
by the prevailing social, economic, cultural, climatic, ecological and other conditions...89
Haugen points out three different concepts as presented under the General Comment
No.12: accessibility, availability and acceptability. Availability refers to feeding oneself
directly from productive or well functioning distribution, process and market systems.90
Acceptability is envisaged in light of perceived cultural food values91and accessibility
which was already discussed earlier to include both physical and economic access to food.
Under Article 11.2, gives another direction on the right to food as the fundamental right to
be free from hunger. Not much is mentioned or defined as to the normative content of
Article 11.2 in the General Comment 12 except as under paragraph 17 that violations occur
when a State fails to ensure the satisfaction of, at the very lest, the minimum essential level
required to be free from hunger.92 As an obligation of conduct, States; shall take,
individually and through international cooperation, the measures, including specific
programmes which are needed ;(b) taking into account the problems of both food-
importing and food-exporting countries.93 Thus the General Assembly in its tenth session
on the Right to Food, recognise the negative impact on the full enjoyment of the right to
adequate food of insufficient purchasing power and of increased volatility of prices of
agricultural commodities on the international markets, particularly on people in the

88
Haugen (2007) p.120

89
UN Doc E/C.12/1999/5 paragraph 7.

90
ibid paragraph 12.

91
ibid paragraph 11.

92
The General Assembly in its 7th special session 2008, in accordance to Economic and Social Council
1996/31 requested the Human Rights Council to mandate the Special Rapportuer on the Right to Food to
clarify the definition of obligations in relation to the right to be free from hunger on the basis of the General
Comment No. 12 adopted by the CESCR in 1999.

93
ICESCR Article 11 (2) (b)

25
developing countries...94 The Human Rights Council went further to stress that all States
should make every effort to ensure that their international policies of a political and
economic nature, including international trade agreements, do not have a negative impact
on the right to food in other countries.95 This leads to the next discussion on how far the EU
and the EAC as partners in the EPAs have gone in the fulfilment of their obligations in the
respect and upholding of the right to food. Prior to this however, it is important to establish
the EU obligation to respect the right to adequate food towards the EAC.

3.1.1 The Extra-territorial Obligation in the ICESCR.

The extra-territorial obligation to respect implies that the EU should refrain from any
unjustified interference with the enjoyment of an ESC right by individuals in the
South.96This obligation of abstention comes into play at the level of policies, bilateral and
multilateral agreements and projects (this includes EPAs). The EC in including a human
rights clause in the CPA recognised that it is bound by international human rights law; the
same applies to the EU.97 The view is that states duties must arise wherever their actions
have a human rights effect.98 According to Narula (2007) such normative guidance is at
odds with international law in various aspects. One of them being that the state only bears
responsibility for respecting, protecting, and fulfilling the rights of those within its territory
or under its jurisdiction. Jurisdiction has been narrowly interpreted by international law

94
UN Doc A/HRC/10/L.25 paragraph 29

95
ibid paragraph 17.

96
Vandenhole (2007) p.100

97
ibid. The discussion on state obligations toward people in other countries extraterritorial obligations
has only recently received more attention. There is a growing understanding that economic globalisation
makes the strengthening of extraterritorial human rights obligations in international law even more important,
in order to effectively address human rights violations and to fully reflect the universality of human rights.
Economic globalisation results in the fast increase in trans-boarder activities, therefore extraterritorial effects
are also on an increase and need to be tackled. (Further discussion see Hausmann et al 2006)

98
Narula (2006)

26
jurisprudence to apply only to situations where a state exercises effective control.99 The
question Narula poses is, How then can a state be obligated to ensure that its negotiations
in trade agreements does not violate the right to food of people in territories over which it
does not exercise effective control?
There are two distinct approaches to expanding the scope of ICESCR beyond a states
territory.100 The first approach argues that the ICESCR can be applied extraterritorially
where a state exercises jurisdiction through effective control. The second approach
argues that, under the obligation of international cooperation, State Parties to the ICESCR
must respect and protect social and economic rights extraterritorially regardless of whether
jurisdiction is exercised abroad.

In Bankovic v. Belgium and others (2001), the European Court of Human Rights, while
affirming that jurisdiction is essentially limited by the sovereign territorial rights of states,
concluded that the exercise of extraterritorial jurisdiction can exist when through effective
control of a territory a state exercises all or some of the public powers normally to be
exercised by the government of that territory. This deals almost exclusively with
101
violations of civil and political rights. Narula goes on to argue that, given that social and
economic rights are interdependent with civil and political rights, a strong policy argument
can be made that a states ICESCR obligations, like its civil and political rights obligations,
should extend beyond its territory to situations where it exercises effective control. The
right to food, for example, is interdependent with civil and political rights such as the right
to life, the right to self-determination, and the right to information.102 In the present case it
would be important to establish which public powers the EU is exercising in negotiating
the EU-EAC EPA. According to Hausmann et al 2006, WTO members should be held

99
ibid

100
ibid

101
ibid

102
ibid

27
accountable for human right violations by facilitated by the organisation.103 In the same
vein it can be said that the EU should be held accountable for the violations of the right to
food brought by trade agreement it is negotiating.

The obligation of international cooperation with respect to the implementation of the right
to food is embodied in Article 2(1) and Article 11 of ICESCR. Article 2(1) of the ICESCR
provides: Each State Party to the present Covenant undertakes to take steps, individually
and through international assistance and co-operation, especially economic and technical,
to the maximum of its available resources, with a view to achieving progressively the full
realization of the rights recognized in the present Covenant by all appropriate means,
including particularly the adoption of legislative measures. Article 11(1), further provides
that States Parties will take appropriate steps to ensure the realization of this right,
recognizing to this effect the essential importance of international co-operation based on
free consent. Article 11(2) calls on States Parties to take measures, individually and
through international cooperation, to ensure the fundamental right to be free from hunger.

According to Hausmann et al the universality principle is reflected in the fact that,

following article 2.1., the realisation of the rights of the Covenant is not limited to the
territory of the state party. Steps to realise the rights in the Covenant have to be taken
individually and through international cooperation.104 In its General Comment 12 on the
right to adequate food, the ESCR Committee provides guidance on the interpretation of the
obligation of international cooperation. The Committee notes that states should recognize
the essential role of international cooperation and comply with their commitment to take
joint and separate action to achieve the full realization of the right to adequate food.105The
Comment provides that States Parties should take steps to respect the enjoyment of the

103
Hausmann et al (2006) p.14.This is related to actions of organisations. They further mention that,
Limited influence and a lack of effective control should not be an argument against holding states
accountable for their decisions in international fora.

104
Ibid p.10

105
U.N. Doc.E/C.12/1999/11

28
right to food in other countries, to protect that right, to facilitate access to food and to
provide the necessary aid when required.106 Thus the extraterritorial obligation to fulfil
implies that the EU is to act in bilateral and multilateral negotiations and agreements as an
advocate of approaches which contribute to enhanced enjoyment of the full range of ESC
rights in the South.107

3.2 The EU-EAC EPA and the Right to Food

The Parties to the Cotonou Agreement acknowledge that Respect for all human rights and
fundamental freedoms, including respect for fundamental social rights, democracy based
on the rule of law and transparent and accountable governance are an integral part of
sustainable development.108 The Agreement affirms that respect for human rights,
democratic principles and the rule of law, which underpin the ACP-EU Partnership, shall
underpin the domestic and international policies of the Parties and constitute the essential
elements of this agreement.109 Further still, in support of the importance of human rights
that, The Partnership shall actively support the promotion of human rights...110

The Cotonou agreement indeed draws a close nexus between human rights and
development in the sense that, development and the protection of fundamental freedoms
and human rights are interrelated and mutually reinforcing,111and that, human rights are
universal, indivisible and inter-related.112 According to the Working Group on the Right to

106
ibid

107
Vandenhole (2007) p.101

108
Cotonou Agreement article 9 (1)

109
Ibid

110
Ibid article 9(4)

111
Ibid article 9(2)

112
Ibid

29
Development113, the Cotonou Partnership Agreement, while being a fairly comprehensive
document for development, does not specifically incorporate the Right to Development.
Nevertheless, human rights are an essential element of the Cotonou Partnership Agreement
in all areas, as well as being one of the five pillars of the partnership. This also goes for the
case of the Right to Food; there is no specification of it therein. However, Dr. Maria V
Reisen114 argues that using the Right to Development criteria, it can be seen that certain
rights that are part of the Right to Development, are incorporated into the Cotonou
Partnership Agreement.115 Thus the UN Declaration to the Right to Development states
that, States should undertake, at the national level, all necessary measures for the
realization of the right to development and shall ensure, inter alia , equality of opportunity
for all in their access to basic resources, education, health services, food, housing,
employment and the fair distribution of income.116

In the framework agreement between the EU and the EAC countries it was agreed that the
EPA would be consistent with the objectives and principles of the Cotonou Agreement and
that the EPA shall serve as an instrument of development.117 Article 4 of the EU-EAC
framework agreement relating to the principles of the agreement states that negotiations
shall be based; (a) on the acquis of the Cotonou Agreement and (b) regional integration.
Sustainable development is also mentioned under Article 2(a) as an objective of the EU-
EAC EPA. The Human Rights aspect is not mentioned in the interim agreement.
Elsewhere the countries from the Forum of Caribbean States (CARIFORUM) have signed
a full EPA. Article 2 of the CARIFORUM EPA provides that it is based on the
Fundamental Principles as well as the Essential Elements of the Cotonou Agreement, as set

113
A/HRC/12/WG.2/TF/CRP.3

114
ibid

115
Ibid paragraph 19

116
UN Declaration on right to development article 8 (1)

117
EU-EAC EPA framework preamble

30
out in Articles 2 and 9 respectively, of the Cotonou Agreement.118 However, the EPA does
not include any explicit references to human rights. Article 3119 partly reflects the right to
development criterion (a) to the extent that it sets out that The Parties reaffirm that the
objective of sustainable development is to be applied and integrated at every level of their
economic partnership, in fulfillment of the overarching commitments set out in Articles 1,
2 and 9 of the Cotonou Agreement and especially the general commitment to reducing and
eventually eradicating poverty in a way that is consistent with the objectives of sustainable
development.

One of the arguments for the absence of a human rights approach to the EPAs by Dr. M.
Reisen is that it is consistent with the EUs suspension practice on human rights grounds
affecting financial assistance and exempting the trade regimes in the context of cooperation
with ACP countries. In the Joint Report 2003120 the EC had signified its intention to have
the non-execution clause contained in Articles 96 and 97 of the Cotonou Agreement
included in EPAs. The non-execution clause provides for the possibility of trade sanctions
in the event of violations of democratic or human rights principles.121 However, the ACP
position was that the non-execution clause should not apply to EPAs and should be
confined to political cooperation. This was recently also reiterated by officials of the
European Commissions Directorate General of Trade, who made the same observation to
argue that trade and human rights policies function independently from each other.122
Further still CPA sanctions have never been applied to trade but only to aid.123 Also that

118
CARIFORUM EPA article 2

119
CARIFORUM EPA

120
ACP-EC/NG/NP/43

121
ibid

122
UN DocA/HRC/12/WG.2/TF/CRP.3

123
The Food and Aid Convention (FAC) Article IX (d) states that all food aid transactions are to be
conducted in such a way as to avoid harmful interference with the normal patterns of production and
international commercial trade.

31
such a clause would be incompatible with the WTO GATT Article XXIV on quantitative
restrictions.

3.2.1 The Impact of the EPA on the right to food

The original point of EPAs is for the parties to comply with WTO rules by being based on
the principle of reciprocity; that is, the EU opens up to ACP produced goods; and in
return, the ACP states open themselves up to EU exports. The EPAs present the ACP
countries with new opportunities to trade, improve investment and capital flows, and
generate advances in technology (including information technology) to promote economic
growth, development and raise the living standards of the people in the ACP regions.124
The European Unions own mid term Sustainability Impact Assessment (SIA)125 comments
that the EU ...is committed to understanding the impacts of its trade agreements on
economic, environmental and social sustainability and seeks to ensure that its trading
relationships promote, rather than detract from, efforts to pursue sustainable development.
The purpose of which as mentioned is to identify the economic, environmental and social
impacts of trade negotiations in order to integrate these issues into the agreements currently
being negotiated between the EU and the ACP regions.

Therefore in order to mitigate potential negative impacts of reciprocity and encourage

positive impacts, negotiators should classify some products as sensitive and ensure that
there is an appropriate safeguard provision in the EPA taking into account the goal of
promoting sustainability.126 Part IV of the EU-EAC EPA Framework agreement provides
for trade defense measures including safeguard measures which are meant to protect the
domestic industry and market. The EU-EAC EPA has included a clause that would ensure

124
CPA article 1

125
PricewaterhouseCoopers (2007)

126
Ibid

32
food security in Article 17 under non-tariff measures.127 The Council of the European
Union in its conclusions mentioned that EPAs should contribute to sustainable
development, food security and reduction of poverty.128 On the other hand EPAs are
increasingly seen as carrying serious risks of bringing about a significant deterioration of
the terms of ACP-EU trade. According to this negative scenario, it would also be unlikely
for Economic Partnership Agreements to strengthen the human rights implementation
capacity of ACP states.129

Firstly, the EU is accused of pushing weak African states to compete with EU goods
without the option of subsidies such as those enjoyed by their producers.130 Export
subsidies allow for the export of agricultural surpluses at prices below production costs,
which bring world prices down and cause import surges and dumping in the world market
affecting the poorer small farmers in ACP countries.131 These farmers in turn lose their
livelihoods and become food insecure as they are unable to compete with the highly
subsidised products.132 In the case of maize produce in Kenya, marketed produce fetched
KES 3.3 billion in 2004 and wheat produce generated KES 1.2 billion. In a post EPA
regime, the Government is likely to receive less revenue from these key agricultural sectors
due to decreased production.133 Given the human rights definition of the right to food,
nation states have an obligation to protect the livelihoods of small farmers, enabling them
to produce food for the local community and protect them from suffering from cheap

127
Unless otherwise provided... The provisions of paragraph 1 of this Article shall not extend to the
following: (a) Export prohibitions or restrictions temporarily applied to prevent or relieve critical shortages of
foodstuffs or other products essential to the exporting contracting party;...

128
Council of the European Union, 15298/08

129
Art (2007)

130
Plahe (2007)

131
ibid

132
Gray (2003)

133
Civil Society Organisations Parallel Report (2008)

33
agricultural imports.134The UN Special Human Rights Rapporteur Olivier de Schutter told
agriculture delegates on 2 July 2009, trade can only be beneficial to human rights if certain
conditions are met, in particular if countries can protect their vulnerable populations from
surges of cheap imports. Failure to do that could mean small farmers and food producers
are wiped out because of the domination of a few large traders and processors, he said.135

According to the Kenya Institute for Public Policy Research and Analysis report it
mentions that if the EPAs are concluded with the current EU subsidies136 and non tariff
barriers in place, staple foods such as maize, rice, dairy, and wheat will experience
decreased production and exports. Maize is the staple food for Kenyans and wheat is third
to it. The impact of the EPA in these produce would mean small scale farmers, majority of
whom are women, would lose their livelihoods due to flooding of cheap and heavily
subsidised agricultural products from the EU. Loss of livelihoods and continued
dependency on imported food would mean massive hunger for many.137 Should food
simply be seen under the EPAs as a trade commodity or a human right?

Secondly, freer trade does not automatically lead to market access.138 According to David
Bryne, Commissioner for Health and Consumer Protection he contends that, Without
largely tariff access for our markets developing countries would face even bigger
problems...Food trade with the EU is a win-win situation for developing countries..139
Further still, supporters of the AoA argue that liberalised trade in agriculture shall enhance

134
Plahe (2007)

135
WTO: 2009 NEWS ITEM

136
The EU is alone spends US 120 billion dollars a year on domestic support. (Jagjit Plahe 2007)

137
Civil Society Organisations Parallel Report (2008)

138
Plahe (2007)

139
EuropaWorld (2004)

34
food security and that free market conditions will create a win-win situation for all.140
However, the EU maintains food safety rules for trade at EU level.141 Agreement on
Sanitary and Phytosanitary Standards (SPS) Article 2 (1) offers a sanctioned method to
ensure this through import control. It permits WTO members to protect human, animal or
plant life or health. To ensure that imported products live up to EU food safety standards,
imports are only allowed from listed countries. In other words their compliance with EU
food safety rules has been checked.142 European Commissions Food and Veterinary Office
(FVO) provides for the guidelines for EUs import requirements as part of the efforts to
facilitate food trade with third countries.

For many ACP countries this creates a restriction on market access to the EU. Most of the
agricultural products from these countries are not able to live up to the safety standards
required by the EU.143 In order to address the difficulties exporting developing countries
have in gaining access to other markets due to SPS measures, the African Group of WTO
Members has proposed the establishment of a facility within the Global Trust Fund to
ensure that developing countries and LDCs have the financial and technical capacity, cost
free, to meet the SPS requirements.144
In agricultural trade, market access restrictions and export subsidies are considered to
impose the largest obstacles to the realisation of the right to food.145 Small farmers are
therefore in a danger of experiencing low sales of their produce and in return unable to
obtain financial resources to access food markets.146 Recalling the definition of the right to

140
Plahe (2007)

141
EuropaWorld (2004)

142
Ibid

143
Gray (2003)

144
ibid

145
Ibid

146
ibid

35
food being economic accessibility including personal or household financial costs
associated with acquisition of food.147 The EU continues to defend itself by making such
statements as The EU is not a fortress.148 That the EU is the worlds largest customer for
farm products from developing countries and it alone absorbs 85% of Africas agricultural
exports.149 The EU has in its WTO negotiations offered as one of its targeted measures for
developing countries the readiness to move regarding the elimination of all forms of export
subsidies.150

Below is a case study report in Ghana which is also quite close to the situation in Kenya.
The aim of the fact finding visit was to investigate the likely effects on the Human Right to
Food of the EPA that is currently negotiated between ECOWAS and the EU. Between June
30th and July 5th 2007, the team conducted interviews with tomato producers in Koluedor
in the East Dangbe District, poultry farmers and market women in Ashaiman in the District
of Greater Accra, local and national government officials, as well as experts from farmers
organizations, research institutions and NGOs. These are the preliminary conclusions of an
international fact finding visit organized by FIAN International and the Send Foundation of
West Africa. The team was joined by the National Peasant Farmers Association of Ghana:
Interviews conducted with poultry producers and their representatives
have revealed that the production of poultry in Ghana is at a high risk of
collapsing. Most farmers have moved out of producing broilers and are
now concentrating on the production of eggs. In the past, the production
of broilers was strategic in bringing ready cash to the households. Today,
many farmers who rely on the production of eggs are without any income
during several months before the layers produce the first eggs. Especially
during this time, peasant farmers find it difficult to feed their families.
Some poultry farmers even reported that they have constantly had only
two meals per day over the last years

147
UN Doc E/C.12/1999/5 paragraph 13

148
EuropaWorld (2004)

149
ibid

150
Ibid

36
 The move away from the production of broilers was mainly due to the
difficulty of accessing markets and the low profits as a result of low
producer prices and rising costs of inputs. Interviews with farmers and
market women support studies done by the Food and Agriculture
Organization of the United Nations (FAO) and by NGOs which show that
imported chicken parts from the European Union have been dominating
the Ghanaian markets for some years now. Although the bird flu scare is
reported to have already affected the market in Ghana in 2004, farmers
are convinced that it is imports from Europe which are the greater threat
to the business. They appeal to the government of Ghana to create a
business environment where there is fair competition and to reduce the
imports of cheap chicken parts.
Ghanaian producers of fresh tomato have lost a considerable market share
due to imports surges of tomato paste mainly from European countries
such as Italy, Spain and Portugal. Annual imports of tomato paste have
increased from 3,269 tons in 1998 to 24,740 tons in 2003, while domestic
production of fresh tomatoes has stagnated or even declined The
interviews show that peasant farmers in Koluedor find it more and more
difficult to sell their fresh tomatoes at volumes and prices which permit
them to feed their families adequately. All of them complained that
production costs have increased much more than producer prices. For
poor peasants, this increasing gap means that they frequently have to
reduce meals, especially of children and women, and that they have
started running into debts.151

During the ACP-EU Joint Parliamentary Assembly meeting in Wiesbaden (Germany) from 25
to 28 June 2007152, on poverty reduction for small farmers in ACP countries it was considered
that some free trade agreements between unequal partners have exacerbated poverty and are
having an adverse impact on food security and contributing to the deterioration of the situation
of some net food importing ACP states. Whereas the EU is currently in the process of
developing an 'Aid for Trade' Strategy which could result in increased support for small-scale
farmers, the ACP-EU development cooperation policy should be based on the recognition of
the right of the ACP countries to protect their agriculture in order to guarantee decent earnings

151
FIAN International (2007)

152
ACP-EU/100.011/07/fin.

37
for small farmers, increase local production and guarantee food security, while allowing
selective market openings, as was the case in Europe.153

153
ibid

38
 CHAPTER FOUR

4. The Justiticiability of the Right to Food under the EPAs

Are there any judicial mechanisms available at the international and national levels for
challenging EPAs on the basis of the violation of the right to food? Many civil societal
groups have spearheaded lobbying against such free trade agreements that threaten the
human rights meant to be upheld by States. States evaluating the benefits of Free Trade
Agreements (FTAs) must be fully aware of the broader international context into which
they are born and the implications of international law as each FTA develops.154 As
discussed earlier in chapter 2 the EU and the EAC countries are negotiating the new trade
agreement under an Economic Partnership Agreement in the form of a free trade agreement
as provided for in Article XXIV of WTO/GATT. This therefore requires that the FTA
members may seek additional certainty about their FTA rights and obligations and the
155
likely outcome in the event of a dispute relating to other areas of international law.
ESCR are an integral part of international human rights law. They are the subject of
specific treaty obligations in various international instruments, notably the ICESCR.
Cassese mentions that, Respect for human rights derives its most solid guarantee from the
UN system and therefore States prefer to bring the issue of gross disregard for human rights
before international organisations chiefly the UN.156
On the other hand many people still feel that human rights is a domestic concern, not one
that should be dealt with on the international stage.157 Therefore in a significant number of
jurisdictions, adjudication bodies have intervened to protect a wide range of social rights
from intrusion and inaction by the State and non-State actors.158 This Chapter will discuss

154
Mitchell (2007)

155
ibid

156
Cassese (2005) p. 59

157
Mitchell (2007)

158
Langford (2008) p. 3

39
the legal nature of social rights and the possible justiciability of these rights. Also discussed
hereunder will be the avenues (at national, regional and international scenes) available in
challenging the EPA on violation of the right to food.

4.1 Legal Nature of Social Rights

Social rights refer to those rights that protect the necessities of life or that provide for the
foundations for an adequate quality of life.159 It is sometimes mentioned that economic and
social rights are not suitable for judicial consideration because of the wide range of issues
that have to be taken into account and the uncertainty surrounding effective means of
achieving the ends in question.160 Positioned as national and or international policy
aspirations, economic, social and cultural rights have thus been said to fall below the
justiciable threshold for individual legal enforcement.161 Another argument is that the rights
are vague, inherently of a positive nature and resource dependent.162 Article 2 describes the
nature of the legal obligations under the ICESCR and the manner in which States parties
should approach implementation of the substantive rights. States parties are required to
take steps to the maximum of their available resources with a view to achieving
progressively the full realization of ICESCR rights by all appropriate means. On the hand
ICCPR Article 2163 states that;
1. Each State Party to the present Covenant undertakes to respect and to
ensure to all individuals within its territory and subject to its jurisdiction the
rights recognized in the present Covenant...
2. Where not already provided for by existing legislative or other measures,
each State Party to the present Covenant undertakes to take the necessary
steps, in accordance with its constitutional processes and with the provisions

159
Scott (1992) p.9

160
http://www.icj.org

161
ibid

162
Langford (2008) p. 30

163
ICCPR (1966)

40
 of the present Covenant, to adopt such laws or other measures as may be
necessary to give effect to the rights recognized in the present Covenant.
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized
are violated shall have an effective remedy, notwithstanding that the violation
has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right
thereto determined by competent judicial, administrative or legislative
authorities, or by any other competent authority provided for by the legal
system of the State, and to develop the possibilities of judicial remedy;

According to Dennis the wording of the two Conventions differs greatly. The ICCPR on
the face of it requires state parties to guarantee the rights stated therein through appropriate
legal measures whereas the rights set forth in the ICSECR represent goals to be achieved
progressively.164 Dennis argues that the different treatment of the ESCR should in no wise
relegate them to a lower hierarchal rung; for such rights as the right to adequate food be
related to resource bank of the state, has created an issue on whether it can be adjudicated
under courts of law.

4.1.1 Justiciability of the right to food

Article 2(1) of the Covenant states each State Party undertakes to take steps, individually and
through international assistance and co-operation, especially economic and technical, to the
maximum of its available resources, with a view to achieving progressively the full
realization of the rights recognized in the present Covenant by all appropriate means,
including particularly the adoption of legislative measures. The Limburg Principles on the
Implementation of the ICESCR state that at the national level States parties shall use all
appropriate means, including legislative, administrative, judicial, economic, social and
educational measures, consistent with the nature of the rights in order to fulfil their obligations
under the Covenant.165 Further still that legislative measures alone are not sufficient to fulfil

164
Dennis (2004) p.476

165
Limburg principles para 17

41
the obligations of the Covenant and that article 2(1) would often require legislative action to be
taken in cases where existing legislation is in violation of the obligations assumed under the
Covenant.166 States parties shall also provide for effective remedies including, where
appropriate, judicial remedies.167 According to Langford 2008, although domestic legislation in
many countries provides a measure of judicially enforceable labour and social rights,
legislative rights are not always sufficient to protect human rights, and they are subject to
amendment by simple majority of the population.168 He goes on to state that on the other hand
judges in adjudicating cases make law which can be used as precedence.

4.1.2 The issue of Justiciability

Jean Ziegler, the special Rapportuer of the UN has defined justiciabilty as the possibility
that a human right, which is recognised in general terms, can be invoked before judicial and
semi-judicial organisms that can determine whether the right has or has not been violated
and can decide about the redemptive measures to be taken.169 There are two main issues
that have been raised in the various arguments on justiciabilty. The first is the complex
question of resource constraints and the appropriate role of the judiciary in this regard and
secondly the existence of a mechanism or procedure too resolve alleged violations of the
rights in question.170 This means that with the coming into force of the optional protocol to
the ICESCR this will make ESCR justiciable. On the issue of resource allocation the
question raised is whether allocation of resources was a legitimate issue for review by a
treaty body under an individual complaints mechanism and if so, what criteria would be
used in deciding on the appropriate allocation of resources.171

166
Ibid paragraph 18

167
Ibid paragraph 19

168
Langford (2008) p.3

169
Franco (2008) p.7

170
Dennis (2004) p.474

171
Ibid p. 473

42
According to Arbour resources are needed to implement aspects of all human rights that is
both civil political and social and economic rights. In many cases, the efforts deployed by
the State will be progressive and proportional, linked to the availability of resources. Yet
this link to the availability of resources does not reduce these rights to aspirations or State
obligations to mere policy goals. Nor does the need for progressive realization justify the
invidious perception that economic social and cultural rights are luxury goods, to be
claimed and enjoyed only by societies that can "afford" them.172 The South African
Constitutional Court remarked that many of the civil and political rights entrenched in the
text will give rise to similar budgetary implications without compromising their
justiciability. The Court went on to state that the fact that socio- economic rights will
almost inevitably give rise to such implications does not seem to them to be a bar to their
justiciability.173

It is important to note that there is vast record showing the adjudication of social economic
rights on the national level. This is mainly because of the inclusion of a Bill of Rights in
national Constitutions.174 This automatically gives such rights the level supremacy of law
in the land by virtue of being constitutionalised. A leading example of this comes from
South Africa whose 1996 Constitution encompassed a wide range of economic, social and
cultural rights on an equal footing with civil and political rights.175 One notable example of
this may be found in the case of Government of the Republic of South Africa v.
Grootboom.176 The facts of this case are as follows: Irene Grootboom was one of a group of
390 adults and 510 children living under appalling conditions in a South African shanty-
town settlement. Illegally occupying land reserved for low-cost housing, the State forcibly

172
UN Doc WG OP ICESCR (2006)

173
Langford (2008)

174
ibid

175
http://www.icj.org

176
ibid

43
evicted the "Grootboom group" and bulldozed their primitive domiciles. Prior to this, many
of the inhabitants had applied for State subsidised low-cost housing and had been on a
waiting list for up to seven years. Petitioning the High Court, Irene Grootboom sought
State supplied basic shelter on behalf of her 800 member squatter society basing her
argument on her South African constitutional right to housing.

The key question appealed to the Constitutional Court was whether the constitutionally
enshrined housing and shelter rights placed a positive obligation on the South African State
to provide housing for the petitioners. The facts of this case presented the Constitutional
Court with a very difficult choice: to approve the illegal occupation of land by homeless
people or to ratify the inaction of the Government to deal with the issue of homelessness.
On October 4, 2000 the Court held that the South African government was positively
obliged to remedy the conditions faced by the Grootboom group through the provision of
basic housing. This result was arrived at through the finding that the State housing policies
were unreasonable. In determining the reasonableness of said policies, the Court decided
that while limited State resources were an important factor, in the instant case the State had
a duty to address the needs of the most vulnerable members of society. Thus, in the context
of the right of access to housing, the Court held that South African State policy, in order to
be reasonable, had to take account of the different socio-economic levels of the South
African population and could not ignore those whose needs were most urgent.
In conclusion, the Constitutional Court declared that the State housing programme had to
include measures "to provide relief for people who have no access to land, no roof over
their heads and who are living in intolerable conditions or crisis situations." This landmark
Grootboom decision stands for a number of important economic, social and cultural rights
principles:177 (i)The justiciability of economic, social and cultural rights cannot be
determined in the abstract;(ii) Civil, political, economic, social and cultural rights are
indivisible, interrelated and interdependent; and (iii) The reasonableness standard with
regard to socio-economic rights mandates Courts, in determining whether the State is

177
http://www.icj.org

44
complying with its obligations of progressive implementation, to evaluate whether
measures were adopted to address problem areas and whether such measures were
reasonable, both in their conception and implementation.178 In assessing the reasonableness
of South African housing programs under Grootboom, State measures were considered in
light of the social, economic and historical context and the capacity of institutions
responsible for implementing housing programmes. The Court found that South African
housing programs failed to address the needs of the most desperate and thus failed against
the reasonableness standard.179

4.2 The Right to food under the EU-EAC EPA: is it justiciable?

The justiciability of the right to food within national, regional and international arenas
receives support under international and regional law. Reference is made to Article 8 of the
Universal Declaration of Human Rights (UDHR), which states: Everyone has the right to
an effective remedy by the competent national tribunal for acts violating the fundamental
rights granted him by the constitution or by law. Addressing this issue, United Nations
CESCR180 has advised that: Any person or group who is a victim of a violation of the
right to adequate food should have access to effective judicial or other appropriate remedies
at both national and international levels.181 All victims of such violations are entitled to
adequate reparation, which may take the form of restitution, compensation, satisfaction or
guarantees of non-repetition. National Ombudsmen and human rights commissions should
address violations of the right to food.182 The incorporation in the domestic legal order of

178
ibid

179
The concept of "reasonableness" of State action is a well-known legal concept and long used in
adjudication of civil and political rights. The growing body of jurisprudence at the national and regional
levels illustrates that it can be similarly employed to assess the extent to which States respect their obligations
in the area of economic, social and cultural rights. (Ms.Louise Arbour High Commissioner for Human
Rights)

180
Committee on Economic, Social and Cultural Rights

181
UN Doc E/C.12/1999/5 paragraph 32

182
Ibid

45
international instruments recognizing the right to food, or recognition of their applicability,
can significantly enhance the scope and effectiveness of remedial measures and should be
encouraged in all cases. Courts would then be empowered to adjudicate violations of the
core content of the right to food by direct reference to obligations under the Covenant.183
Judges and other members of the legal profession are invited to pay greater attention to
violations of the right to food in the exercise of their functions.184

In relation to the right to food, Article 2185 essentially requires States Parties to do
something - engage in actions dedicated to the realization of the right to food.186 While it
is recognized that the full realization of this right can only be achieved over time and is
subject to the availability of resources, States Parties to the ICESCR signalled their
commitment to be accountable at the international level with regard to the right to food.
National level accountability will depend on the domestic laws of a country, including the
status of international treaties, Constitutional provisions, the rule of law and political
accountability.

4.2.1 At National Level-The constitutionalisation of the right to food.

The right to food has also been incorporated or read into national constitutions.187 In some
countries the judiciary has also played an active role in promoting the right to food. The
Supreme Court of India, for example, affirmed that where people are unable to feed
themselves adequately, governments have an obligation to ensure that they are not exposed
to malnourishment, starvation and other related problems.188 It has also been a practise for

183
Ibid paragraph 33

184
Ibid paragraph 34

185
ICESCR

186
ftp://ftp.fao.org/docrep/fao/010/a0511e/a0511e03.pdf

187
Narula (2006) p.78

188
ibid

46
courts to refer to a social right by deriving it from another right explicitly written. In Abuki
case, the Constitutional court of Uganda stated that in banishing Abuki189 from his village
this amounted to deprivation of his right to property which also was a violation of his right
to life. According to the court the fact of him leaving his livelihood meant a violation of his
right to life.
Directive principles in the Constitution have also been followed in some courts in
adjudicating social rights.190 In the 1995 Constitution of Uganda for example the right to
food is not explicitly provided for under the Bill of Rights (Chapter IV) but can be found
under the National Objectives and Directives of State Policy in the constitution.191

Another outlook on some of the leading cases on social economic rights show that courts
are caught in the need to respect separation of powers.192 Nolan et al put forth a debatable
statement which is that social and economic rights are human rights but that it is not the
role of courts...to interfere with governments decisions about how to allocate its
resources.193 In Soobramoney for example, the Constitutional court signalled that a court
would be slow to interfere with rational decisions taken in good faith by the political
organs...194 The appellant had appealed on the qualified right of access to health care
services. It was held that there was no breach as the appellant had not shown that the
guidelines set by the hospital authorities were unreasonable.195 On remedial measures by
the court, Scott et al proposed that a South African constitution should grant the judiciary
broad remedial powers when faced with an unconstitutional law. He went further to state

189
Constitutional Appeal No.1/1998 (SC)

190
Langford (2008) p.6

191
Objective XXII of the social and economic objectives provides for food security and nutrition

192
Nolan (2007)

193
ibid

194
Langford (2008) p.81

195
ibid

47
that a court may find it more appropriate to simply declare a violation of a right for
enumerated reasons, leaving it up to the government...to fashion the best means of
achieving a result.196

In the EAC region the Kenya Small-Scale Farmers Forum and the Kenyan non-
governmental organisation the Kenya Human Rights Commission filed a suit with the
Kenyan High Court.197 They are taking on the ministry of trade and industry, the Kenya
National Commission on Human Rights, the ministry of planning and national
development and the Attorney General for what they regard as a contravention of the
fundamental rights and freedoms in Kenyas constitution. The organizations are seeking an
injunction halting the signing of the EPA.
The Petitioners are relying on the Constitution of Kenya and particularly Chapter V of the
said Constitution which is Kenyas Bill of Rights and makes provisions for the protection
of fundamental rights and freedoms of the individual. The Sixth Petitioner also relies on the
International Bill of Human Rights of the United Nations which includes the Universal
Declaration of Human Rights, ICESCR and the ICCPR. The allegations in the petition
include, EPAs could lead to food insecurity, undermine Kenyas food sovereignty and put
most citizens including the Petitioners livelihood at risk, put them under servitude and
impede their right to self-determination.198 That the EPAs could lead to massive job losses
and unemployment arising from the decrease in industrial and agricultural production and a
depressed market for Kenyas manufactured and agricultural goods. It is further revealed
that the social welfare effect of the EPA could lead to huge losses of livelihoods, social
safety nets and food security. Today the case is at the mention stage (2 years later) and
there has not been a substantive hearing.199

196
Scott (1999) p.146

197
Small Scale Framers and the Kenya Human Rights vs. The Kenya Government

198
ibid

199
Kabiru 2009 email

48
From the previous discussion it can be said that government may put forth the argument
that it is negotiating the EPA in good faith and that it has taken safeguard measures under
Title IV200 that would protect the local production and thus fulfilling the obligation to
protect the right to food. Another limitation could be the fact that Kenya does not provide
for ESCR under its national constitution. However, the Kenyan High Court could still
follow precedence of other cases as the Ogoni case (which shall be discussed in the next
section) whereby the right to food is inferred from other rights explicitly written.

4.2.2 Regional Level- The African Commission.

The African Charter formulates socio-economic rights neither with claw-back clauses nor
with conventional limitations as progressive realisation and within available
resources.201 Article 1 of the Charter states that, The Member States of the Organisation
of African Unity, parties to the present Charter shall recognise the rights, duties and
freedoms enshrined in the Charter and shall undertake to adopt legislative or other
measures to give effect to them. In the Social and Economic Rights Action Center and the
Center for Economic and Social Rights v. Nigeria (the Ogoni Case) case the African
Commission202 attempted to outline the socio-economic obligations of states in greater
detail by stating that all rights generate the duties to respect, protect, promote and fulfil.203
The duty to protect for example was held to oblige the State to protect right-holders from
political, economic and social interferences by other subjects through legislation and other
effective remedies. In this case a communication that involved a violation of wide-ranging
rights, including the right to food was considered. The Commission had to consider
whether or not the then military government of Nigeria had, through action and inaction,

200
EU-EPA Framework Agreement Title IV provides for trade defence measures.

201
Chirwa (2008) p.325

202
African Charter article 30, states, An African Commission on Human and Peoples Rights, hereinafter
called the Commission, shall be established within the Organisation of African Unity to promote human
and peoples rights and ensure their protection in Africa.

203
Chirwa (2008) p.325

49
violated the rights of the Ogoni community. While the right to food is not explicitly
enshrined in the African Charter on Peoples and Human Rights, the African Commission
read this right into the Charter and held that it was implicit in many other rights, such as the
right to life, health, and to economic, social and cultural development. In its holding, the
African Commission found that: Of course, the Commission here is not blaming the
Nigerian Government for its endeavours to make use of its resources and thereby bring
development to its people. Rather, the blame is qualified in that the Government has not
taken such steps as would [be necessary] to protect the Ogoni population from harms done
by the NNPC-Shell consortium. Thus it can be concluded that the obligation to protect is
justiciable. This Case holds a landmark decision because it set the precedent that some
rights which are not expressly recognised in the African Charter could still be implicitly
recognised by a combined reading of some expressly recognised rights.204

The discussion now remains whether this could be a possible avenue for challenging the
EU-EAC EPA. According to the Charter if a State Party has good reasons to believe that
another State Party has violated the provisions of the Charter, it may draw, by written
communication, the attention of that State to the matter. This Communication is then
addressed to the Secretary General of the OAU and to the Chairman of the Commission.205
The Commission can only deal with a matter submitted to it after making sure that all local
remedies, if they exist, have been exhausted, unless it is obvious to the Commission that
the procedure of achieving these remedies would be unduly prolonged.206 This is a possible
avenue for the Kenyan petitioners in the case against the EU-EAC EPA as the Commission
can receive complaints from individuals and NGOs; an appeal therefore stands.

204
ibid

205
African Charter article 47

206
ibid article 50

50
4.2.3 The UN Committee on Economic, Social and Cultural Rights

The Committee on Economic, Social and Cultural Rights (CESCR) operates as the
principle supervisory body to the Covenant. The CESCR is composed of eighteen experts,
sitting in an independent capacity, chosen with due regard to equitable geographical
distribution. It was created by ECOSOC, and its mandate is merely to assist ECOSOC in
the consideration of state reports.207 In particular, its role is to consider States parties reports
and to make suggestions and recommendations of a general nature, including suggestions and
recommendations as to fuller compliance with the Covenant by States parties.208

One of the enduring criticisms of reporting systems in general is their reliance on the coop-
eration of states, not only in terms of their submission of reports but also in their participa-
tion in the constructive dialogue.209 The Committee on the CCPR notes, as appears from
its annual reports, that only a small number of States have submitted their reports on time.
Most of them have been submitted with delays ranging from a few months to several years
and some States parties are still in default despite repeated reminders and other actions by
the Committee.210 The unwillingness of certain states to cooperate in that regard has posed
problems with respect to the ICESCR too. ECOSOC in its Resolution 1987/5 paragraph 9
the committee decided to begin preparing general comments on the various articles and
provisions of the Covenant with a view of assisting State Parties with their reporting
obligations. Through the general comment the CESCR has also made the attempt to outline
its understanding of both substantive and procedural aspects of the Covenant.211 As of June
2000, the committee had produced thirteen such general comments, seven of which relate

207
http://www1.umn.edu/humanrts/edumat/IHRIP/circle/modules/module3.htm#_ednref10

208
Limburg Principles para 83

209
http://www1.umn.edu/humanrts/edumat/IHRIP/circle/modules/module3.htm#_ednref10

210
U.N. Doc. HRI/GEN/1/Rev.1 at 2 (1994).

211
http://www1.umn.edu/humanrts/edumat/IHRIP/circle/modules/module3.htm#_ednref10

51
to substantive rights including General Comment No.12212 on the right to adequate food. It
provides for substantive issues arising in the implementation of Article 11 of the
Convention.

One of the major shortcomings of the ICESCR as a human rights instrument is the fact that
it does not possess the equivalent of a system for the consideration of individual or group
petitions. 213 Although the CESCR has recently drawn up a draft Optional Protocol to allow
for the consideration of individual communications, it is unlikely that this will be adopted
by states in the near future. However, individuals and groups do have the opportunity to
submit information to the CESCR alleging violations of rights within the Covenant, and
this, on occasion, may induce the committee to ask states for a particular response.214 To
some extent those claims might be championed by interested NGOs participating in the
work of the committee. In broad sense, the system operates in a quasi-judicial manner in
providing at least a potential outlet for complainants.215

In the Concluding Observations of the Committee on ESCR for Kenya , concern was made
mention on the risk of possible adverse impacts the EPA would bring. This was in
particular towards the small farmers who depend on maize, wheat, rice and dairy and the
right to food. The committee recommended that Kenya as the state party undertake
measures necessary to assess the potential adverse impact of any commitments under the
EPA.216 The Committee noted with concern that the Convent rights had not been
incorporated into the domestic law and therefore are not directly applicable in the courts of
the state party. The Committee recommended that the State party include economic, social

212
UN Doc E/C.12/1999/5

213
http://www1.umn.edu/humanrts/edumat/IHRIP/circle/modules/module3.htm#_ednref10

214
ibid

215
ibid

216
UN Doc E/C.12/KEN/CO/1

52
and cultural rights in its new Constitution, with a view to incorporate the Convent rights
into domestic law and ensuring their direct applicability in the courts.217

The petitioners in the Kenyan case against the signing of the EPA are relying on the fact
that Government of Republic of Kenya has approved, ratified and signed all the three
United Nations human rights instruments and is therefore bound by its obligations
directions and commands.

4.2.4 The Optional Protocol to the ICESCR

Ever since the adoption of the ICESCR and the ICCPR in 1966, proponents of economic,
social and cultural rights have complained that the ICSECR lacks implementation
mechanism equal to that in ICCPR and its Optional Protocol.218 Eventually in 1990, the
Committee on Economic, Social and Cultural Rights formally started discussions on an
Optional Protocol to ICESRC, with a view to establishing an individual complaint
mechanism under the Covenant similar to those existing under all the other main UN
human rights treaties (with the exception of the Convention of the Rights of the Child).219
In 1997 the Committee presented a draft Optional Protocol to the Commission on Human
Rights, which the Commission sent to Governments, intergovernmental organizations and
NGOs for comments.220 In 2001 the Commission on Human Rights appointed an
independent expert, Mr Hatem Kotrane, to examine the question of a Draft Optional
Protocol to ICESCR adopted under Resolution 2001/30. Mr Kotrane submitted reports to
the Commission in 2002 and 2003 recommending the adoption of a complaint
mechanism.221 In 2002, at its fifty-eighth session, the Commission decided to establish at

217
UN Doc E/C.12/KEN/CO/1

218
Dennis (2004) p.462

219
http://www2.ohchr.org/english/issues/escr/document.htm

220
ibid

221
ibid

53
its next session an Open-ended Working Group "with a view to considering options
regarding the elaboration of an optional protocol to the ICESCR."222

In the Independent Expert report , headed by Hatem Kotrane, he proceeded to focus on

four practical, but fundamental questions concerning the proposed optional protocol:(1)
which specific rights articulated in the Covenant should be encompassed by the complaints
procedure?(2) what body should have the competence to receive and resolve
complaints?(3)who should be entitled to bring a complaint, and what admissibility criteria
should apply to those complaints?(4)what range of remedies should be available for
justified complaints?223 Hatem recommended that the complaints mechanism be limited to
situations revealing a species of gross, unmistakable violations of or failure to uphold any
of the rights set forth in the Covenant.224 Ms. Louise Arbour, High Commissioner for
Human Rights to the third session of the Open-Ended stated, ...the time has come for the
adoption of an optional protocol in the form of a communications procedure...one that
promises to help parties to the Covenant honour the commitments they have made at law,
complementing remedial avenues under the European, Inter-American and African regional
human rights systems...225 Other justifications made during the Working Group debate
included the need to reaffirm the universality, interdependence and invisibility of all human
rights hence correction be made in the division made between civil political rights and
social economic and cultural rights.226Langford also argues that concerning the abstract
nature of economic social and cultural rights, they are phrased no differently than civil and
political rights; the right to freedom of speech is no more concrete in expression than the
right to social security.227 However, there remains an important disagreement which

222
Commission on Human Rights resolution 2002/24

223
Dennis (2004) p.470

224
ibid

225
WG OP ICESCR 2006.

226
ibid

227
Langford (2008) p.30

54
evolves around the justiciablity of economic, social and cultural rights. Secondly other
delegations in the debate reject the notion that all human rights are the same taking into
account the legal nature of the obligations stemming from the covenants.228

The Optional Protocol has been approved and it provides for an inquiry procedure whose
duty is to investigate a gross violation.229 Article 11 of the Optional Protocol states that, A
State Party to the present Protocol may at any time declare that it recognizes the
competence of the Committee...It further states that if the Committee receives reliable
information indicating grave or systematic violations by a State Party of any of the ESCR
set forth in the Covenant, the Committee shall invite that State Party to cooperate in the
examination of the information and to this end to submit observations with regard to the
information concerned.230 In this instant case if one state in the EU or the EAC ratifies and
selects this procedure then it would trigger the Committee to have a look at the EPA.231
However, right now the limitation for the Kenyan petitioners is that the protocol will not
come into force for sometime and it is not guaranteed that any of the parties will ratify.232

4.3 Obstacles to Justiciability of the Right to Food

In many cases judges have been reluctant to recognize the direct application of the
ICESCR, although there are constitutional provisions as well as the General Comments No.
3, 9 and 12 of the UN Committee on Economic, Social and Cultural Rights in which the
UN has established that in case of legal gaps and when the core contents of a right is
threatened, judges are held to apply the treaty directly.233 Furtherstill, Judges tend to

228
Dennis (2004) p.472

229
Langford (2009)

230
Optional Protocol to the ICESCR article 11(2)

231
Langford (2009) email.

232
ibid

233
Franco (2008) p.8

55
disregard the right to food unless it is being recognized constitutionally and at law in
general.234

Haugen 2007 also mentions concerning state obligations that it can be difficult to identify
the responsibility of the State for the existence of a serious situation of non-fulfilment of
social human right rights. That while a situation of widespread torture is clearly falling
under a States responsibility, a situation of widespread hunger can be the cause of many
other factors not anywhere in the control of the State.235 This will put the court in a difficult
position in trying to establish causation in such a case of violation of the right to food.

234
ibid

235
Haugen (2007) p. 448

56
 CHAPTER FIVE

5. Conclusions and Recommendations

5.1 Conclusion
The legal status of the EU-EAC Economic Partnership Agreement under the WTO
provision law is quite a complex issue. It is imperative to note that the conclusions of the
interim EPA is dependant on negotiations which are indeed on going up until today. The
purpose of which is to arrive to the compatibility with the relevant WTO provisions on Free
trade agreements. Inspite of the trade negotiations being at regional levels as with the East
African Community (EAC) and the EU (as required under Article XXIV), there remains
such issues as the transition period and the requirement to liberalise substantially all
trade which have to be fulfilled inorder to attain to WTO trade system. The transition
periods have been extended beyond the requirement of 10 years plus all the EAC countries
have not lived up to the substantially all trade requirement as many have created sensitive
lists in the case of agricultural trade.

Human Rights Law and Trade law are indeed two different aspects of international law and
each plays an important role in the international community. The Cotonou Agreement
which is not WTO Compatible has incorporated human rights in its provisions. However,
the upcoming Economic Partnership Agreements meant to replace the previous trade
relations between the EU and the EAC countries do not include human rights in its
provisions. The WTO system has also not incorporated human rights into its legal system.
There is indeed a possible risk of violation of human rights such as the right to food in the
EAC countries in trade under the EPA. This is arises out of the competition with EU
agricultural products and rising food prices which will affect economic access to food and
availability of food as local production decreases.

The only legal relation between the two international legal systems is that both the EU and
the EAC countries recognise the importance of human rights as legally binding on them

57
and enforceable too. Both the parties to the agreement have international obligations under
the ICESCR to respect, fulfil and protect. The EU now can be said to have an extra
territorial obligation towards the South countries such as the EAC countries. Indeed the
challenge however, remains in the justifiability of economic, social and cultural rights
especially the right to food both on the national and international scenes in the event of
ESCR violations. The right to food is indeed a constitutional right under the national level
and has been adjudicated under the national courts.

5.2 Recommendations

It is important to note that other factors are at play while negotiating the EPA to conform to
WTO legal system. The long term existing situation that creates the North and South gap
brought by the different economic and developmental status has to be considered. It is
paramount to note that indeed the WTO system that is demanding for reciprocity between
the parties created this very gap and does recognise its existence. This has created a duo
play in the EPAs with the reciprocity aspect and the enabling clause concerning developing
countries and least developed countries. The conflict is on and is manifest in the Doha
Round. Is it possible to reconcile the two; how about a compromise in Article XXIV? This
is a serious future implication that has to be addressed by the WTO.

With the coming into force of the Optional Protocol to the ICESCR on individual
complaint mechanisms such groups as the Kenyan small scale farmers will have recourse to
the international scene especially where the state does not include the ESCR in the Bill of
Rights as is the case in Kenya.

The issue of human rights and trade law is a very wide one for a discussion in a thesis. This
very study has had a limitation of time and space. A discussion on for example the
enforcement mechanism of ESCR would require an indepth discussion at both national and
international levels including court decisions. This has not been satisfactory. However, the
study is indeed an enlightenment on the relation between the right to food and trade with

58
the South countries such as EAC and the implications that these ongoing EPA negotiations
could have on the realisation of this right. Another strong point is that the thesis discusses
very current issues of enforcement of ESCR and the WTO compatibility of trade between
the EAC and EU countries under the EPA.

7,000ites
y kids for kids

59
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A