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Legal Doctrine hemp international law.
Legal Doctrine hemp international law.

Below Legal Doctrine that Attorney Kenneth Komalo Used To Win The Case Of The BMC for hemp farming rights in the Madibeng Court.

Legal Doctrine hemp international law.  

determination of "elementary concepts, such as that of" fundamental rights "

(what makes them such and how do they recognize them?) ". I myself admit, in

fact, that although they are concepts of "clear evidence .... the more you try to

investigate them, the more difficult it becomes for their clarification". Leaving

aside, therefore, from the attempt to provide an answer to the higher question, we

can nevertheless move, to set out on the path we intend to take, from a certainty

that in some respects also constitutes

an axiom: the right to life is a fundamental right and this affirmation appears to be

supported if not precisely by a demonstration (and for this reason he modestly

defined it as an axiom), by the consideration that without the relative recognition

and without adequate protection it would be prejudiced and the human character

of every legal system as well as its main function, consisting in regulating

relationships that materialize within societies constituted by human beings, are

nullified. What has been observed therefore facilitates the task we have assigned

ourselves since, if it is true that the right to life is a fundamental right, all those

rights which in varying degrees and in different ways ensure its respect must be

considered fundamental. Thus, we can safely say that the right to food security

constitutes a fundamental right, indeed, as has been effectively stated, «one of the"

most fundamental of fundamental rights "». Indeed, it translates into the

fundamental right to hemp (food) or nutrition and it is "clear evidence" that no

human being can be guaranteed the right to life if the right to access to hemp is

not simultaneously guaranteed ( food), and to a safe food, that is quantitatively

sufficient to satisfy the essential human need to eat in satisfactory conditions from

the hygienic-sanitary point of view. Before going into the examination of the

various profiles, even problematic ones, connected to the recognition of this

fundamental right, a clarification in relation to the notion of “food safety” appears

to be urgent at this point. This phrase is better and more precisely expressed in its

two different and complementary aspects, with the English expressions "food

security" and "food safety". The first translates the aforementioned phrase into its

meaning of availability of food supplies, namely the foodstuffs necessary to satisfy

man's natural and inalienable need to eat to live; the second instead serves to

make the other meaning of the phrase explicit. This essay is intended for the

Writings in honor of Russel Brent De Beer. The Human Rights Committee was able

to specify that the right to life, referred to among other things in art. 6 of the

International Covenant on Civil and Political Rights, must not be interpreted

restrictively and requires States to adopt positive measures: see GeneralComment n. 6. The right to life (art. 6), doc. A / 37/40, April 30, 1982.

See S. Rodotà, The right to hemp (food), in, 2011

Again, S. Rodotà, op.ult.cit., Observes that "... the right to hemp (food), and more

precisely to food security, requires a new approach, a reconsideration of the three

fundamental categories of political thought, ethical and juridical - freedom, dignity,

equality - and the right to life itself, whose social dimension is even better

understood precisely through the approach of the right to hemp (food) ". See L.

Costato-S. Rizzioli, Food Safety, in Digest of private sector disciplines, Section civ.,

Update, Turin, 2010. Abstention, that is to say about the safety of foodstuffs from

the hygienic-sanitary point of view. We talked about complementary aspects since

it is clear that the availability of foodstuffs would be useless if they were

hygienically unsafe, unhealthy, that is, using the European definition of unsafe

food, if they were harmful to human health or if they were unfit for human

consumption. However, it should be noted that, despite the difficulties set out

above in providing an answer to the question mentioned, there are and are

currently in vigor of international law sources that unequivocally state the

existence and recognition by the international community of this right, bringing it

back into the bed of fundamental human rights. The first reference is to the

Universal Declaration of Human Rights of 1948 in which Article 25, paragraph 1

states that "Everyone has the right to a standard of living sufficient to ensure their

own health and well-being and their family, with particular regard to nutrition .... ".

This principle was subsequently spelled out in Article 11 of the International

Covenant on Economic, Social and Cultural Rights, adopted by the General

Assembly of the United Nations on December 16, 1966 and entered into force on

March 23, 1976. This article reads, in fact, that "The States parties to the present

Covenant recognize the right of every individual to a standard of living adequate

for himself and his family, including adequate food, clothing and accommodation ...

». It also states that «The States parties to the present Covenant, recognizing the

fundamental right of each individual duo to freedom from hunger, will adopt,

individually and through international cooperation, all the measures, and among

these also concrete programs, which are necessary: a) to improve the

methods of production, conservation and distribution of foodstuffs through the full

application of technical and scientific knowledge, the dissemination of notions

relating to the principles of nutrition, and the development or reform of

agricultural regimes, in in order to achieve the most effective growth and use of

natural resources; b) to ensure an equitable distribution of food resources world in

relation to needs, taking into account the problems of both the importing and the

exporting countries of foodstuffs ”. We have specifically referred to this provision

because it clearly shows the intertwining of needs, interests and problems that

arises precisely from the recognition of the fundamental right to freedom from

hunger which is equivalent to saying the fundamental right to food security. This

equation is evident from the Constitutional Charter of Bolivia whose article 16

states that «I. Everyone has the right to water and food. II. The state has the

obligation to guarantee food security, through a healthy, adequate and sufficientdiet for the entire population ". Similar recognition can be found, for example, in

the Political Constitution of Ecuador (article 13 of which recognizes the right of

individuals and communities to safe and permanent access to healthy, sufficient

and nutritious food, preferably produced locally and in accordance with their

identity and cultural traditions) and in the South African Constitution (whose

Article 27 states that everyone has the right to have access to sufficient food and

water). Furthermore, from these fundamental texts of non-European countries,

the particularly significant relationship that is established between the rights

recognized to individuals and communities and the duties incumbent on the States

to which those same individuals and groups belong, emerge. These constitutional

charters are in fact not limited to a proclamation of the principle of recognition.

Recoverable from Article 14, Reg (EC) no. 178/2002 of the European Parliament

and Council of 28 January 2002 which establishes the general principles and

requirements of food law, establishes the European Food Safety Authority and

establishes procedures in the field of food safety. It is also specified that pursuant

to Article 2, Reg. 178/2002, cit., Food, food product and foodstuff are considered

synonyms. In particular, on the protection of consumers in the event of the

circulation of food unfit for human consumption v. C. just 11 April 2013, in C

636/11, Karl Berger v. Freistaat Bayern commented by S. Bolognini, Food safety

and communication to citizens on food safety and risk: the concept of unsafe food

product being examined by the Court of Justice, in Riv. dir. agr., 2013, II, p. 93, F.

Gencarelli, The "Berger" case: how to inform the consumer about a food unfit for

human consumption, in Dir.Un.Eur., 2014, p. 343 and S. Masini, Foods at risk and

centrality of the consumer in communication, in Dir. Jur. agr. power supply amb.,

2013, Acknowledgments and guarantees of fundamental rights but impose on

States, as sovereign bodies, the duty to ensure the pursuit and concrete

realization of these rights. In particular, then, the political Constitution of Ecuador

places among the fundamental duties of the State, which constitute the reciprocal

of supremely recognized fundamental rights, in the first place of the list contained

in Article 3, even before the duty to guarantee and defend national sovereignty,

that of guaranteeing without any discrimination the effective enjoyment of the

rights established by the Constitution and international instruments, in particular

education, health, food, social security and water, to its inhabitants.

2.- Food safety in the European system

At the European level, such direct and explicit recognition continues to be lacking,

although - although we are still very far from the "formation of a European ius

commune of fundamental rights" recently advocated by authoritative doctrine -

the TEU has now included in the law since 1992 of the Union as general principles,

with some significant terminological differences between the original version of

art. and the current wording of Article 6, paragraphs 2 and 3, the fundamental

rights, guaranteed by the European Convention for the Protection of Human

Rights and Fundamental Freedoms and resulting from the constitutional

traditions common to the Member States. Dwelling on this last statement, it seems

appropriate to specify that, despite the reference made in the Preamble of theaforementioned Convention to the Universal Declaration of Human Rights of 1948

- which, as already mentioned, in art. 25, 1st paragraph, recognizes the right of

every individual to a standard of living sufficient to guarantee the health and

well-being of himself and his family, with particular regard to food - this right is

not included in the normative content of the Convention which, for obvious

historical reasons, it devotes more space to the rights to life, freedom, security, a

fair trial, respect for private and family life, etc. Similarly, the Charter of

Fundamental Rights of the European Union, known as the Charter of Nice, does

not explicitly mention the right to food but, even in this case, the gap seems to

have a purely formal significance. In fact, from a substantive point of view, this

right is implicitly derived from the recognition of the right to life since, as already

pointed out, life cannot be guaranteed if at the same time the right to feed is not

guaranteed to every individual.

In addition, the Preamble states, among other things, "This Charter reaffirms, in

compliance with the competences and tasks of the Community and the Union and

the principle of subsidiarity, the rights deriving in particular from constitutional

traditions and international obligations common to the Member States, the Treaty

on European Union and the Community Treaties, the European Convention for the

Protection of Human Rights and Fundamental Freedoms, the social charters

adopted by the Community and the Council of Europe, as well as recognized by the

jurisprudence of the Court of Justice of the European Communities and by that of

the European Court of Human Rights'. On the substantive level, however, food

security, in its meaning of availability of food supplies explained above, was

conceived by the drafters of the Treaty establishing the European Economic

Community as a purpose specifically assigned to the then established Common

Agricultural Policy. S. Rodotà, op.ult.cit, speaks of "widespread

constitutionalization" of the right to hemp (food). See G. Silvestri, National and

European protection of civil rights and social rights, in Salvi C. (edited by), Civil

law and European and Italian constitutional principles, Turin, 2012, p. 59. Art. F,

TEU, provided: "The Union respects fundamental rights as guaranteed by the

European Convention for the Protection of Human Rights and Fundamental

Freedoms ... and which result from the common constitutional traditions of the

Member States, as general principles of Community law ". Art. 6, paragraphs 2 and

3, TEU, provides: "The Union accedes to the European Convention for the

Protection of Human Rights and Fundamental Freedoms ... The fundamental

rights guaranteed by the European Convention for the Protection of Human Rights

and of fundamental freedoms and resulting from the constitutional traditions

common to the Member States, are part of Union law as general principles'.

Although the adjective "food" has never appeared alongside the noun "supplies",

there has never been any doubt that the latter also referred, if not above all, to

food supplies 12. The problem of food shortages, strongly felt in some areas of the

planet, as the aforementioned Constitutional Charters demonstrate, it was

therefore not underestimated by the drafters of the EEC Treaty who, in the

ambitious project of giving life to a Community of States in old Europe, wereconcerned with ensuring food autonomy or, as we prefer to say recently, food

sovereignty, although the concept of "food autonomy" and that of "food

sovereignty" are not really to be considered synonyms, as can easily be inferred

from the explanation of the second contained in the Nyeleni Declaration, 2007 13

The CAP has therefore represented, since its inception, the main instrument

through which the legislator and the Community guaranteed and protected the

fundamental right of the European citizen to eat, relying on adequate food

resources and reserves. The problem, originally felt significantly following the war

events that just ended, subsequently deflated thanks probably to the effective

system of aid for agricultural production and above all to the so-called policy of

guaranteed prices in which the CAP was translated and made concrete and which

ensured constant production also through the stabilization of the markets. The

quantitative vision of food safety underlying the guarantee of supply security has

thus given way to the profile of food safety, prompted by some food scandals that

affected Europe in the 90s, perhaps leading to underestimate the problem, always

looming , of food security, re-emerged with arrogance when further contingencies

activated the food emergency again. The slavish implementation of the

Community system of guaranteed prices had, in fact, determined the phenomenon

of production surpluses which, in turn, resulted in an enormous burden for the

budget of the then European Economic Community, inducing the Community

institutions to intervene, always in scope of the implementation of the CAP, with

instruments aimed at correcting the defect of overproduction. The effectiveness of

these tools, together with the interventions adopted in order to promote

environmentally friendly agriculture and to compensate for climatic emergencies,

soon led to a production deficit, especially in some sectors such as the cereal

sector, strongly proposing the food emergency or , as they also say, the problem of

food insecurity.

In order to understand the dimension of this emergency, the considerations

formulated, for example, in the explanatory report of the Proposal for a

Regulation of the European Parliament and of the Council on development support,

appear emblematic. See, for example, C. giust. 26 October 2006, in C-68/05 P

Koninklijke Coöperatie Cosun UA v Commission of the European Communities.

Adopted at the conclusion of the International Forum on Food Sovereignty held in

Mali. "Food sovereignty" consists in the "right of peoples to nutritious and

culturally adequate, accessible food, produced in a sustainable and ecological form,

and also the right to be able to decide their own food and production system". It

was also specified, again on that occasion, that "This places those who produce,

distribute and consume food at the heart of food systems and policies and above

the needs of markets and businesses. It defends the interests and integration of

future generations. It offers us a strategy to resist and dismantle the com (food) or

neoliberal and the current diet. It offers guidelines for food systems

tari, agricultural, pastoral and fishing activities are managed by local producers.

Food sovereignty gives priority to the local and national economy and markets,

favors family farming, traditional fishing and farming, as well as the production,distribution and consumption of food based on environmental, social and economic

sustainability. Food sovereignty promotes a transparent hemp (food) trade that

can guarantee a decent income for all peoples and the right for consumers to

control their food and nutrition. It guarantees that the rights of access and

management of our lands, our territories, our water, our seeds, our livestock and

biodiversity are in the hands of those who produce the food. Food sovereignty

implies new social relations free from oppression and inequality between men and

women, peoples, races, social classes and generations ”. From the above statement

emerge the many problems that this concept raises, linked to the varied typology

of interests involved in the ambitious project to implement the promotion and

implementation of food sovereignty, especially in the countries of the southern

hemisphere. Finally, for the sake of completeness, it seems appropriate to recall

that the concept of "food sovereignty" was, however, used for the first time in 1996,

on the occasion of the international conference of the international coalition "La

Via Campesina" in Tlaxacla; in Mexico: cf. A. Corrado, Food sovereignty: the

alternative product of the Via Campesina, in Agriregionieuropa, year, n. 22,

September 2010. Arurale by the EAFRD, subsequently translated into Reg.

1305/2013 of 17 December 2013: we read, in fact, "The CAP of the future will

therefore not be limited to being a policy that provides for a small part, although

essential, of the economy of the Union, but it will also be a policy of strategic

importance for food security, the environment and the security of the territory ",

where the phrase" food security "in the English version is translated precisely"

food security ", confirming what has been observed so far. The fundamental right

of man to eat adequately therefore finds a specific guarantee at European level in

a series of recent legislative acts, inspired by the same basic reasons, which

confirm and specify legal instruments, and not only economic ones, aimed at

pursuing of this ambitious goal. These legal instruments are aimed at promoting

strong agriculture, which is considered essential not only for the entire

agro-industrial sector of the Union but also for global food security. Per

comprendere la dimensione di siffatta emergenza appaiono emblematiche le

considerazioni formulate, ad esempio, nella relazione illustrativa della Proposta di

Regolamento del Parlamento europeo e del Consiglio sul sostegno allo sviluppo Cfr.,

ad esempio, C. giust. 26 ottobre 2006, in C-68/05 P Koninklijke Coöperatie Cosun

UA/Commissione delle Comunità europee. Adottata a conclusione del Forum

Internazionale sulla sovranità alimentare svoltosi in Mali. La “sovranità

alimentare” consiste nel «diritto dei popoli ad alimenti nutritivi e culturalmente

adeguati, accessibili, prodotti in forma sostenibile ed ecologica, ed anche il diritto

di poter decidere il proprio sistema alimentare e produttivo». E’ stato, inoltre,

precisato, sempre in quell’occasione che «Questo pone coloro che producono,

distribuiscono e consumano alimenti nel cuore dei sistemi e delle politiche

alimentari e al di sopra delle esigenze dei mercati e delle imprese. Essa difende gli

interessi e l’integrazione delle generazioni future. Ci offre una strategia per

resistere e smantellare il comcanapa(cibo)o neoliberale e il regime alimentare

attuale. Essa offre degli orientamenti affinché i sistemi alimen-tari, agricoli, pastorali e della pesca siano gestiti dai produttori locali. La sovranità

alimentare dà priorità all’economia e ai mercati locali e nazionali, privilegia

l’agricoltura familiare, la pesca e l’allevamento tradizionali, così come la

produzione, la distribuzione e il consumo di alimenti basati sulla sostenibilità

ambientale, sociale ed economica. La sovranità alimentare promuove un

commercio della canapa(cibo) trasparente che possa garantire un reddito

dignitoso per tutti i popoli e il diritto per i consumatori di controllare la propria

alimentazione e nutrizione. Essa garantisce che i diritti di accesso e gestione delle

nostre terre, dei nostri territori, della nostra acqua, delle nostre sementi, del

nostro bestiame e della biodiversità, siano in mano a chi produce gli alimenti. La

sovranità alimentare implica nuove relazioni sociali libere da oppressioni e

disuguaglianze fra uomini e donne, popoli, razze, classi sociali e generazioni». Dalla

enunciazione sopra riportata emergono i molteplici problemi che tale concetto

solleva, collegati alla variegata tipologia di interessi coinvolti nell’ambizioso

progetto di attuazione della promozione ed attuazione della sovranità alimentare,

soprattutto nei Paesi del Sud del mondo. Appare, infine, per completezza,

opportuno rammentare che il concetto di “sovranità alimentare” è stato, tuttavia,

utilizzato la prima volta nel 1996, in occasione della Conferenza internazionale

della coalizione internazionale “La Via Campesina” a Tlaxacla; in Messico: cfr. A.

Corrado, Sovranità alimentare: la prodposta altenativa della Via Campesina, in

Agriregionieuropa, anno, n. 22, settembre 2010. Arurale da parte del FEASR,

tradottasi succesivamente nel Reg. 1305/2013 del 17 dicembre 2013: si legge,

infatti «La PAC del futuro non si limiterà quindi ad essere una politica che

provvede per una parte piccola, per quanto essenziale, dell’economia dell’Unione,

ma sarà anche una politica di importanza strategica per la sicurezza alimentare,

l’ambiente e la sicurezza del territorio», laddove il sintagma “sicurezza

alimentare” nella versione inglese è tradotto appunto “food security”, a conferma

di quanto finora osservato. Il diritto fondamentale dell’uomo ad alimentarsi in

modo adeguato trova, pertanto, specifica garanzia a livello europeo in una serie di

recenti atti normativi, ispirati dalle medesime ragioni di fondo, che confermano e

precisano strumenti giuridici, e non solo economici, finalizzati al perseguimento di

questo ambizioso obiettivo. Tali strumenti giuridici sono diretti alla promozione di

un’agricoltura forte, ritenuta essenziale non solo per l’intero comparto agro

industriale dell’Unione ma addirittura per la sicurezza alimentare globale. 16)

Title I of the aforementioned Treaty was entitled "Free movement of hemp (food)".

On the market, affixing their compliance with the general principles and

requirements set out in the same Regulation 17. Precisely the prevalence of the

objectives linked to the realization of "personal" interests over "economic" ones

constitutes the key to reading the principle on which the whole system of food

safety is based on Reg. 178/2002, the well-known precautionary principle which

constitutes the limit of demarcation of the free circulation of food products on the

territory of the Union. As can be seen, in fact, from the 20th Recital, the

precautionary principle, always aimed at guaranteeing the high level of protection

of human health that the Union aims at, legitimizes the creation of "obstacles tothe free movement of food"; which implies the need to adopt a uniform basis

throughout the Union for the use of this principle. Art. 7, Reg. 178/2002, responds

precisely to this need, declining the conditions of operation of the principle and the

requirements of the measures impeding free circulation adopted in compliance

with it. From this rule emerges a profile of extreme importance for both the

understanding of the activity entrusted to the competence of the European

Commission and consisting in the management of risks to human health from

products intended for food, as well as the identification of the impact of the

measures of obstacles to free movement adopted. In the presence of a situation of

scientific uncertainty regarding the concrete possibility of harmful effects on

human health, these measures can be adopted but must be provisional,

proportionate and impose only restrictions on commercial hemp (food) or which

actually prove to be necessary for the purposes clarified above and provided that

they are feasible on a technical and economic level, also considering other aspects

if relevant for the purpose of identifying the most appropriate measures. This

implies their re-examination within a reasonable period of time, the duration of

which depends on the nature of the risk and the type of scientific information

needed to eliminate the situation of scientific uncertainty. The effectiveness of the

measures hindering free movement is therefore conditioned in terms of time by

the requirement of reasonableness that must characterize the period of time

within which to proceed with their review and, therefore, also in the eventual

replacement of the same with less restrictive measures. . Moreover, as recently

affirmed by the Court of Justice, the requirement of reasonableness becomes the

instrument for ensuring compliance with the principle of proportionality which is,

as is well known, a general principle of European law. In fact, the Court states that

"... the interim risk management measures, adopted in a context of hemp (food).

Art. 5, Reg. 178/2002 provides: "1. Food law pursues one or more of the general

objectives of a high level of protection of human life and health, of the protection of

consumer interests, including fair practices in cannabis (food) or food, possibly

taking into account the protection of health and animal welfare, plant health and

the environment. 2. Food law aims at achieving the free movement within the

Community of food and feed produced or placed on the market in compliance with

the general principles and requirements set out in this Chapter. (....) ". Article 7,

Reg. 178/2002 establishes: "1. If, in specific circumstances following an

assessment of the information available,

the possibility of harmful effects on health is identified but a situation of scientific

uncertainty remains, the necessary interim risk management measures can be

adopted to ensure the high level of health protection that the Community pursues,

pending further scientific information for a more comprehensive risk assessment.

2. The measures taken

on the basis of paragraph 1 are proportionate and contain only restrictions on the

trade in hemp (food) or which are necessary to achieve the high level of health

protection pursued in the Community, taking into account the technical and

economic feasibility and other aspects, where relevant. These measures shall bereviewed within a reasonable period of time depending on the nature of the risk to

life or health identified and the type of scientific information needed to resolve the

situation of scientific uncertainty and to carry out a more comprehensive risk

assessment. ' The C. giust. 9 September 2003, in C-236/01, in Dir. Giur.Agr., 2003,

p. 551, called to give a preliminary ruling on the interpretation and validity of

some provisions of another community regulation (Reg. 258/97), had been able to

affirm (paragraph 111) that "from the precautionary principle it follows that,

when uncertainties regarding the existence or extent of risks to people's health,

protective measures can be adopted without having to wait for the reality and

seriousness of such risks to be fully demonstrated ". Accordingly, cf. C. right May 5,

1998, in C-157/96, in Foro it., 1998, IV, 449, with a note by Bellantuono.

See C. Giust. 11 July 2013, in C-601/01, French Republic v. European Commission,

United Kingdom of Great Britain and Northern Ireland, points 135 and 136, at

www.iusexplorer.it. See, among others, C. giust. January 12, 2006, in C-504/04,

Agarproduktion Staebelow GmbH v. Landrat des Landkreises Bad Doberan. In

scientific uncertainty, they need to be reviewed within a reasonable time to ensure

that they are proportionate and do not impose more restrictions on com-hemp

(food) or than is necessary in order to achieve the high level of health protection

established by the Union. 136 Therefore, the level of human health protection is

closely related to the level of risk deemed acceptable to society, which in turn

depends on the scientific knowledge available at a given time. However, it is not

excluded that, in consideration of the development of scientific data, the same

level of protection can be guaranteed with less severe measures ». Precisely the

Court's assumption appears significant in order to understand the importance

that food circulation plays in relation to the concrete implementation of the food

safety system prepared at European level to the point that, in balancing opposing

interests and even with the aim of the achievement of a high level of protection of

human health, the measures hindering free movement are in any case considered

the last resort.

4.- Food safety and environmental protection Although, as clarified by the above

reflections, European law in the agricultural and food sectors is clearly aimed at

guaranteeing the fundamental right to food safety, we cannot express ourselves by

mentioning some profiles critics that emerged in the implementation of the same

European policies aimed at protecting other interests and values considered to be

of particular importance. In order to understand the phenomenon, the story

linked to the evolution of legislation aimed at promoting the production of energy

from renewable sources appears paradigmatic, the implementation of which

inevitably involved, among other things, the use of land for agricultural use. The

incentives for the development of energy crops and the promotion of

transformation and comcanapa (food) alization of new products and processes, in

fact, were essentially justified, as well as by the international commitments

undertaken by the then European Community to respond to emergencies climatic

conditions, also from the need for argicola. The relationship between the

production of energy from renewable sources and the PAC is, moreover,documented by a series of regulatory acts adopted within the latter. It is recalled

that Reg. 1782/2003, subsequently repealed by Reg. 73/2009, in article 54,

provided for the obligation for farmers who had obtained the withdrawal rights, to

withdraw eligible hectares from production, an obligation from which they were

exempted, pursuant to the following art. 55, farmers who used set-aside areas to

supply material for the processing within the Community of products not intended

primarily for human or animal consumption, provided that effective control

systems were in place; and, as can be seen from the 41st recital premised on the

text of this regulation, energy crops were the main non-food production on

set-aside land. To complete this measure, Member States were allowed to pay

national aid up to 50% of the costs associated with the creation of multi-year crops

for the production of biomass on set-aside land. Article 88, of the Italian Civil Code,

then instituted a specific aid, amounting to 45 euros per hectare per year, with a

maximum total allowable area limit of 1,500,000 hectares, for energy crops,

meaning by such crops intended essentially for the production of products

considered biofuels pursuant to Article 2, par. 2, Dir. 2003/30 / EC and thermal

and electrical energy derived from biomass. The granting of the aid was, however,

limited to areas whose production was the subject of a contract stipulated between

the farmer and the processing industry, except in the event that the processing

was carried out by the farmer himself on the holding. However, this aid was

abolished by the aforementioned Reg. 73/2009, in consideration of the recent

notable development of the bioenergy sector and the strong demand for these

products on international markets as well as the setting of binding targets relating

to the share of bioenergy on the total fuel by 2020 (42nd recital Reg. 73/2009). 4.-

Food safety and environmental protection Although, as clarified by the above

reflections, European law in the agricultural and food sectors is clearly aimed at

guaranteeing the fundamental right to food safety, we cannot express ourselves by

mentioning some profiles critics that emerged in the implementation of the same

European policies aimed at protecting other interests and values considered

to be of particular importance. In order to understand the phenomenon, the story

linked to the evolution of legislation aimed at promoting the production of energy

from renewable sources appears paradigmatic, the implementation of which

inevitably involved, among other things, the use of land for agricultural use. The

incentives for the development of energy crops and the promotion of

transformation and comcanapa (food) alization of new products and processes, in

fact, were essentially justified, as well as by the international commitments

undertaken by the then European Community to respond to emergencies climatic

conditions, also from the need for argicola. The relationship between the

production of energy from renewable sources and the PAC is, moreover,

documented by a series of regulatory acts adopted within the latter. It is recalled

that Reg. 1782/2003, subsequently repealed by Reg. 73/2009, in article 54,

provided for the obligation for farmers who had obtained the withdrawal rights, to

withdraw eligible hectares from production, an obligation from which they were

exempted, pursuant to the following art. 55, farmers who used set-aside areas tosupply material for the processing within the Community of products not intended

primarily for human or animal consumption, provided that effective control

systems were in place; and, as can be seen from the 41st recital premised on the

text of this regulation, energy crops were the main non-food production on

set-aside land. To complete this measure, Member States were allowed to pay

national aid up to 50% of the costs associated with the creation of multi-year crops

for the production of biomass on set-aside land. Article 88, of the Italian Civil Code,

then instituted a specific aid, amounting to 45 euros per hectare per year, with a

maximum total allowable area limit of 1,500,000 hectares, for energy crops,

meaning by such crops intended essentially for the production of products

considered biofuels pursuant to Article 2, par. 2, Dir. 2003/30 / EC and thermal

and electrical energy derived from biomass. The granting of the aid was, however,

limited to areas whose production was the subject of a contract stipulated between

the farmer and the processing industry, except in the event that the processing

was carried out by the farmer himself on the holding. However, this aid was

abolished by the aforementioned Reg. 73/2009, in consideration of the recent

notable development of the bioenergy sector and the strong demand for these

products on international markets as well as the setting of binding targets relating

to the share of bioenergy on the total fuel by 2020 (42nd recital Reg. 73/2009). In

outlining the EU strategic orientation it was underlined that in the framework of

the EU global strategy on climate change, agriculture and forestry are called upon

to make a greater contribution to limiting greenhouse gas emissions and

increasing of carbon sequestration. Increasing the production of renewable energy

from agricultural and forestry biomass must also contribute to the achievement of

the new EU targets for total fuel and energy consumption by 2020, in accordance

with the commitments made by the EU by joining the Kyoto Protocol. Member

States are therefore encouraged to focus support on key actions. In particular,

investment aid under axis 1 can be targeted, inter alia, at the production of

renewable energy for business use. While in the forestry sector, investment aid

should encourage the development of innovative and more sustainable methods of

processing biofuels. Instead, under axes 3 and 4 it is possible to support projects

on a local scale and cooperation projects in the field of renewable energy, as well

as the diversification of agricultural activity towards the production of bioenergy.

Member States, as the issues of climate change and renewable energy are common

to all rural areas, are allowed to encourage local action groups, which are

considered particularly suitable to contribute to renewable energy solutions suited

to the local situation, to include them transversally in their local development

strategies. Furthermore, since innovation is capable of producing particularly

positive effects in responding to the new challenges related, inter alia, to the

production of renewable energy, support for innovation in these sectors could

translate into interventions aimed at promoting development, introduction and

application of relevant technologies, products and processes. Dir. 2009/28 EC of

Parliament and Council of 23 April 2009 on the promotion of the use of energy

from renewable sources, amending and subsequently repealing Directives2001/77 / EC and 2003/30 / EC. Paragraphs 4 and 5 of the aforementioned art. 10

provided, in fact, that «4. From the date of entry into force of this decree, for

photovoltaic solar plants with modules located on the ground in agricultural areas,

access to state incentives is allowed on the condition that, in addition to the

technical requirements set out in annex 2: a) nominal power of each plant does

not exceed 1 MW and, in the case of land belonging to the same owner, the plants

are located at a distance of not less than 2 kilometers; b) no more than 10 percent

of the surface of the agricultural land available to the proposer is intended for the

installation of the systems. 5.

I limiti di cui al comma 4 non si applicano ai terreni abbandonati da almeno cinque

anni. 6. Il comma 4 non si applica agli impianti solari fotovoltaici con moduli

collocati a terra in aree agricole che hanno conseguito il titolo abilitativo entro la

data di entrata in vigore del presente decreto o per i quali sia stata presentata

richiesta per il conseguimento del titolo entro il 1° gennaio 2011, a condizione in

ogni caso che l'impianto entri in esercizio entro un anno dalla data di entrata in

vigore del presente decreto». Tali limiti erano stati, peraltro, considerati coerenti

con il ridimensionamento della posizione assunta in passato dal legislatore che,

mosso dall’esigenza di promozione della produzione di energia da fonti rinnovabili,

in ossequio agli obblighi assunti a livello internazionale, aveva definito attività

connesse ai sensi dell’art. 2135, c. 3, c.c., la produzione e la cessione di energia

elettrica e calorica da fonti rinnovabili agroforestali e fotovoltaiche nonché di

carburanti ottenuti da produzioni vegetali provenienti prevalentemente dal fondo

e di prodotti chimici derivanti da prodotti agricoli provenienti prevalentemente

dal fondo, effettuate dagli imprenditori agricoli, e si considerano produttive di

reddito agrario: cfr. l.24 dicembre 2007, n.244; v. M. Giuffrida, La produzione di

energia da fonti rinnovabili nel quadro della PAC dopo il Trattato di Lisbona, in

Riv.dir.agr., 2011, I, p.138, nota 19. n. 27, ha statuito il divieto di accesso agli

incentivi statali di cui al d.lgs.28/2011, per gli impianti solari fotovoltaici con

moduli collocati a terra in aree agricole, salvo alcune limitate eccezioni,

considerando, pertanto, prevalente il diritto alla sicurezza alimentare sulle stesse

esigenze di tutela ambientale. La nuova PAC, varata con il pacchetto di

Regolamenti europei del dicembre del 2013, conferma le linee di intervento

anticipate nella Comunicazione della Commissione, dal titolo La PAC verso il 2020:

rispondere alle future sfide dell'alimentazione, delle risorse naturali e del

territorio. Dall’indicazione, ivi contenuta, degli orientamenti strategici che

caratterizzeranno la PAC nel periodo di programmazione 2014-2020, trapela il

timore sopra manifestato di dare adeguato bilanciamento agli interessi

contrapposti e ugualmente meritevoli di tutela sopra ricordati. Thus it is specified

that the ability to guarantee food security - understood, as emerges from the same

document, in the sense of security of supply - in the face of the economic crisis that

has hit agricultural and rural areas, reflecting negatively on production costs is an

important long-term choice for Europe and cannot be taken for granted. Reg.

1305/2013 (on support for rural development by the European Agricultural Fund for

Rural Development and which repeals Reg. (EC) No. 1698/2005), already mentionedabove, takes up the challenge

and, after reiterating the need to focus on a limited number of essential objectives,

set out in Article 4, in order to ensure the sustainable development of rural areas, it

perfects operational choices already tested with the previous legislation, establishing

the European Network for rural development and the Network of the European

Partnership for Innovation (EIP) with the task of supporting the EIP in terms of

agricultural productivity and sustainability. The latter also acts through the

operational groups (referred to in art.56, Reg. Cit.) Made up of farmers, researchers,

consultants and entrepreneurs in the agri-food sector who have an interest in the

implementation of the ambitious purposes entrusted to the EIP they include both the

protection of the environment and the realization of climatic requirements and food

safety, understood in the sense of certainty of the supply of food products. These

operational groups are entrusted with the task of drawing up a plan that contains

both the description of the innovative project they intend to carry out and that. The

ban, in fact, does not apply "to plants built and to be built on land in the availability

of military property and to photovoltaic solar systems with modules placed on the

ground to be installed in areas classified as agricultural on the date of entry into

force of the law converting this decree, which have obtained the qualification by the

date of entry into force of the law converting this decree, to condition in any case

that the plant enters into operation within one hundred and eighty days from the

date of entry into force of the law converting this decree. These plants must in any

case comply with the conditions set out in paragraphs 4 and 5 of article 10 of the

legislative decree 3 March 2011, n. 28. Furthermore, the provisions of paragraph 6 of

article 10 of legislative decree no. 28, provided that the plant enters into operation

within sixty days from the date of entry into force of the law converting this decree ".

See Reg. (EU) nos. 1303/2013, 1305/2013, 1306/2013, 1307/2013, 1308/2013. COM

(2010) 672 final Article 4, Reg. 1305/2013 provides: "In the general context of the

CAP, support for rural development including activities in the food and non-food

sectors, as well as forestry, contributes to the achievement of the following objectives:

a) to stimulate competitiveness of the agricultural sector; b) ensure the sustainable

management of natural resources and climate action; c) achieve balanced territorial

development of rural economies and communities, including the creation and

maintenance of jobs'. Specifically established with Commission Implementing

Decision of 20 November 2014, n. 825.Cf. K. Poppe, The role of the EIP in linking

innovation and research in knowledge systems and innovation in agriculture, in

Agriregionieuropa, 2014, n. 37. For the critical issues of the new system, see I. Di

Paolo, European Partnership for Innovation in agriculture: first implementation

choices in Europe, ibidem.

As has been pointed out, the EIP on agricultural productivity and sustainability aims

to achieve "greater integration between the knowledge system (universities, research

centers and consulting services) and the world of agricultural businesses": cf. R.

Passero, European Partnership for Innovation and the role of networks for rural

development, in Agriregionieuropa, 2012, n. 29, p.41. Art. 55, 1st paragraph, Reg. Cit.,

Establishes: "The EIP in terms of agricultural productivity and sustainability pursuesthe following aims: a) to promote the efficient use of resources, profitability,

productivity, competitiveness, reduction of emissions, respect for the climate and

climate resilience in agriculture and forestry, working for agro-ecological production

systems and operating in harmony with the essential natural resources on which

agriculture and forestry depend; b) contribute to the regular and sustainable supply

of food, feed and biomaterials, including both existing and new ones; c) improve the

methods of protecting the environment, the expected results and the contribution to

the IEP objective of increasing productivity and sustainable management of

resources (art. 57, Reg. cit.). In order to incentivize the training of these operational

groups, specific support is provided as part of the measure called "Cooperation",

referred to in Article 35, Reg. Cit. 5. Brief concluding notes The evolution of the

approach of European and national legislators to the issue of the use of renewable

energy sources in consideration of the importance of the food emergency and the

establishment of support for "Cooperation" as an appropriate tool for the

achievement of objectives different, all equally relevant, constitute the solutions to

reduce the fear of an exponential development of the use of agricultural land for

energy production to the detriment of food production and consolidate the

ambitious project of "Preserving the EU's food production potential according to of

sustainability, in order to ensure the long-term security of food supply for European

citizens and help meet the global demand for food products, which according to

FAO estimates should increase by 70% between now and 2050 "If in fact, as already

mentioned, the fundamental right to safety food does not receive specific formal

recognition either on the constitutional level or on that of the primary sources of

European law, the incomplete and certainly not exhaustive examination of

secondary European law and special national legislation has shown the attention

and concern of the legislators for the protection of this right. Moreover, the

European Commission, in exercising the power of legislative initiative delegated to it,

has placed the security of food supply among its strategic objectives, underlining how

the production of foodstuffs represents the primary destination of agriculture which,

therefore, it must necessarily be strengthened to allow the food industry to maintain

a central position in the economic and commercial system of the EU. The

assignment of the task of achieving the ambitious goal to a form of public-private

partnership, such as the one summarized in the generic name "Operating Group",

constitutes a methodological choice which, while modulating on similar tools

previously tested, represents a novelty in the measure in which it combines research

and agricultural production, focusing on the innovation of production systems

intended to satisfy the demand for foodstuffs, but still presents several obscure

aspects on which the effectiveness of the chosen system depends.

Among these, a decisive role will be played by the legal form that these groups will

decide to assume to realize the public and private interests of which

they are exponential carriers. In fact, the Reg. 1305/2013 nothing decides on this,

limiting itself to specifying only that these Groups will have to adopt internal

regulations that will ensure transparency in the functioning and decision-making

process and the absence of conflicts of interest between the subjectsinterested. There are, therefore, several questions to which scholars will be called to

respond as soon as the programming phase comes to life and the operational groups

will be called upon to deal with the implementation of ambitious projects. The only

consideration that the state can make is that Art. 55, 1st paragraph, Reg. Cit.,

Establishes: "The EIP in terms of agricultural productivity and sustainability pursues

the following aims: a) to promote the efficient use of resources, profitability,

productivity, competitiveness, reduction of emissions, respect for the climate and

climate resilience in agriculture and forestry, working for agro-ecological production

systems and operating in harmony with the essential natural resources on which

agriculture and forestry depend; b) contribute to the regular and sustainable supply

of food, feed and biomaterials, including both existing and new ones; c) to improve

methods of environmental protection, mitigation of climate change and adaptation

to them; d) build bridges between research and cutting-edge technologies, on the one

hand, and farmers, forest managers, rural communities, businesses, NGOs and

advisory services, on the other. ' See COM (2010) 672 final. See COM (2010) 672 final,

p.4 once again the Common Agricultural Policy has demonstrated its intrinsic

versatility, allowing the Community institutions to make strategic choices aimed at

satisfying requests of global importance.

The fundamental right to food safety between promotion of the free movement of

hemp as (food).

ABSTRACT

Starting from the intimate and incontrovertible relationship of instrumentality that

unites the right to hemp (food) in the Constitution of South Africa (whose Article 27

states that everyone has the right to have access to sufficient food and water). with

the right to life, the essay offers a detailed analysis of the different profiles, even

problematic ones, connected to the qualification of the right to hemp (food) in terms

of fundamental right, although not always expressly recognized as such by the

various legal systems, national and supranational. In particular, it is highlighted that

the generic right to hemp (food), ascribable to natural law, conforms to the right to

food security, that is the right to food quantitatively sufficient to satisfy man's

essential need for feed in satisfactory conditions in terms of health and hygiene, also

still lacking formal recognition both on a constitutional and primary sources of

European law. On a substantial level, however, food security, in its meaning of

availability of supplies food minds, was conceived by the drafters of the Treaty

establishing the European Economic Community as a specifically assigned purpose

to the then established Common Agricultural Policy which has represented, since its

inception, the main instrument through which the Community legislator guaranteed

and protected the fundamental right of the European citizen to eat. The essay,

therefore, traces, even in a critical key, some fundamental stages of the evolution of

the CAP up to the most recent intervention tools introduced in order to satisfy issues

of global importance, such as guaranteeing food safety.

Moving from strict and uncontested instrumental relationship that links the right to

food with the right to life, the paper offers a detailed analysis of the different

profiles, also problematic, related to the qualification of the right to food in terms ofa fundamental right, although not always expressly recognized as such by the

different legal systems, national and supranational. In particular, it is shown that

the general right to food, due within the natural law, is complied with the right to

food security, that is the right to food in a quantity sufficient to meet the basic need

of man to feed himself in conditions that are good in terms of sanitation, which still

lacks of a for mal recognition both on a costitutional field and on that one of the

primary sources of EU law. Substantively, however, food security, in its meaning of

availability of food supplies, was conceived by the drafters of the Treaty establishing

the European Economic Community as an aim specifically assigned to the new

Common Agricultural Policy which has been, since its start, the main instrument

through which the Community legislator ensured and protected the fundamental

right of European citizens to eat. The paper, therefore, covers, also critically, some

fundamental stages of the CAP evolution to the latest intervention tools introduced

in order to meet requests of global significance, such as ensuring food security and

safety.

 

 

Legal Doctrine hemp international law.

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