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The Right to Food and Buyer Power

Published online by Cambridge University Press:  06 March 2019

Aravind R. Ganesh

Abstract

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Modern global food supply chains are characterized by extremely high levels of concentration in the middle of those chains. This paper argues that such concentration leads to excessive buyer power, which harms the consumers and food producers at the ends of the supply chains. It also argues that the harms suffered by farmers are serious enough as to constitute violations of the international human right to food, as expressed in the Universal Declaration of Human Rights and more specifically, in the International Covenant on Economic, Social and Cultural Rights. World competition law regimes cannot ignore these human rights imperatives. To a certain extent, these imperatives can be accommodated under existing consumerist competition law theories by the interpretive mechanism of conform-interpretation. However, when one comprehends the truly global scale of modern food supply chains, it becomes obvious that conform-interpretation alone will not suffice. Instead, the protection of a minimum level of producer welfare congruent to those producers’ right to a minimum adequate level of food must find a place among the aims of any credible theory of competition law. Moreover, the same globalized nature of these food supply chains means that current doctrines of extraterritorial jurisdiction of competition control have also to be revised.

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Articles
Information
German Law Journal , Volume 11 , Issue 11 , November 2010 , pp. 1190 - 1244
Copyright
Copyright © 2010 by German Law Journal GbR 

References

2 U.S. Senate Judiciary Committee Hearing, Ensuring Competitive and Open Agricultural Markets: Are Meat Packers Abusing Market Power? Sioux Falls, South Dakota, (23 August 2002); U.S. Senate Judiciary Committee Hearing, Monopsony in Markets for Agricultural Products: A Serious Problem in Need of a Remedy, (30 October 2003); U.S. Senate Judiciary Committee Hearing, Concentration in Agriculture and an Examination of the JBS/Swift Acquisitions, (7 May 2008).Google Scholar

3 See, US. DoJ website: http://www.justice.gov/atr/public/workshops/ag2010/index.htm#dates (Last Accessed: 23 November 2010). The first of these workshops too place on 12 March 2010, at Ankeny, Iowa.Google Scholar

4 Christopher Leonard, US Attorney General, Agriculture Secretary begin hearings on competition in farming system, (12 March 2010) Associated Press.Google Scholar

5 Prepared Remarks of U.S. Attorney General Eric Holder, DoJ and USDA Agriculture Workshop, Ankeny, Iowa, (12 March 2010). Available at: http://www.justice.gov/ag/speeches/2010/ag-speech-100312.html.Google Scholar

6 This is, however, not the first time U.S. governmental institutions have broached the issue. See, supra, note 2.Google Scholar

7 Press Statement, Milk Cartel Hearings Set, Competition Commission of South Africa, (7 Feb 2008). The investigation has so far remained bogged down on procedural questions, with the Supreme Court of Appeal ruling that the Competition Commission's initiation of the complaint against two of the alleged cartel members, as well as the referral of those complaints to the Competition Tribunal, had both been improper: Woodlands Dairy v. Milkwood Dairy (105/2010) [2010] ZASCA 104 (13 September 2010).Google Scholar

8 Press Statement, Competition Commission to probe the supermarket industry, Competition Commission of South Africa, (29 June 2009).Google Scholar

9 Jhong, S. K., Anti-competitive practices at the distribution sector in developing countries, APEC Training Program on Competition Policy paper, 9–10 (2003) and Liz Dodd & Samuel Asfaha, Rebalancing the Supply Chain: buyer power, commodities, and competition policy, (April 2008), South Centre & Traidcraft, 23.Google Scholar

10 Lin, G., Taiwan's Competition Law Enforcement Experience and Cases in Retailing Business, APEC Training Program on Competition Policy paper, 2–5. Op. cit. Dodd & Asfaha, supra, note 9, 23 (2003).Google Scholar

11 Note submitted by Thailand, How enforcement against private anti-competitive practice has contributed to economic development, OECD Global Forum on Competition (2004).Google Scholar

12 Richard Whish, Competition Law 2 (2009).Google Scholar

13 This is modelled on the definition provided by the UK Competition Commission, Groceries Market Investigation 155 (2008), (note 2): “Buyer power is a form of market power that a grocery retailer may have with respect to its suppliers that allows the grocery retailer to extract better terms from its suppliers than would otherwise be the case.”.Google Scholar

14 International Covenant on Economic, Social and Cultural Rights art. 11, 16 Dec 1966, 993 UNTS 3.Google Scholar

15 Website of the UN Food and Agriculture Organisation (FAO): http://www.fao.org/hunger/en/ (Last Accessed: 22 November 2010).Google Scholar

16 See, UN Millennium Project, Halving Hunger: It Can be Done, Summary Version of the Report of the Task Force on Hunger, The Earth Institute, Columbia University, 6 (2005).Google Scholar

17 Amartya Sen, Development as Freedom 160 – 188 (1999). See, also Susan George, How the Other Half Dies, London: Penguin 23 (1991) and Susan Marks & Andrew Clapham, International Human Rights Lexicon 167 (2005). Sen observes that colonial administrators in Bengal during the 1943 famine “were so impressed by the fact that there was no significant food output decline… that they failed to anticipate – and for some months even refused to recognize – the famine as it hit Bengal with stormy severity.” Development as Freedom, 209. Moreover, he notes that that the Bangladesh famine of 1974 occurred at a time period of “peak food availability”, food having been available in greater quantities than at any other time between the years 1971 and 1976: id. 165.Google Scholar

18 Global cereal supply and update, FAO/GIEWS Global Watch, (1 Sept 2010).Google Scholar

19 Raj Patel, Stuffed and Starved 1 (2008).Google Scholar

20 Development as Freedom, 171.Google Scholar

21 World Bank, World Development Report 2008: Agriculture for Development, 3, 29 (November 2007). See, also Sophia Tickell, Fairtrade in perspective, (2004) Sustainability Radar. Op. cit. Dodd & Asfaha, supra, note 9, 9.Google Scholar

22 World Development Report 2008, 135 – 136.Google Scholar

23 Id., 136.Google Scholar

24 See, Peter Gibbon, The Commodity Question: New Thinking on Old Problems, Human Development Report Office, Occasional Paper, 2005/13 and Bill Vorley, Food Inc.: Corporate Concentration From Farm to Consumer, United Kingdom Food Group, (2003), available at: http://www.ukfg.org.uk/docs/UKFG-Foodinc-Nov03.pdf, and Mary Hendrickson et al., The Global Food System and Nodes of Power (2008), available at SSRN: http://ssrn.com/abstract=1337273 (Last Accessed: 23 November 2010) and Molly Anderson, A Question of Governance: To Protect Agribusiness Profits or the Right to Food?, Agribusiness Action Initiatives (2009) and A. Sheldon and R. Sperling, Estimating the Extent of Imperfect Competition in the Food Industry: What Have We Learned? (2003), 54 J. of Agricultural Economics 1. Also quoted in Olivier De Schutter, “Agribusiness and the right to food”, Report of the Special Rapporteur on the right to food to the Human Rights Council, A/13/33, 5 (note 14) (22 December 2009).Google Scholar

25 Catherine Dolan & John Humphrey, Changing Governance Patterns in the Trade in Fresh Vegetables between Africa and the United Kingdom, Globalisation & Poverty, 17 – 18 (2004).Google Scholar

26 Samuel Asfaha, Commodities dependence and development: some suggestions on how to tackle the commodities problems, South Centre & ActionAid (2008).Google Scholar

27 See, e.g. Charis Gresser and Sophia Tickell, Mugged: Poverty in Your Coffee Cup, 22 – 23 (2002); Stuffed and Starved, 8 – 11; and Asfaha, supra, note 26, 10–11.Google Scholar

28 See, New York University Law Students for Human Rights, Transnational Corporations and the Right to Food 3 (2009), available at: www.chrgi.org/publications/docs/TNCsandRTF.pdf (Last Accessed: 23 November 2010). and Christian Parenti, Chocolate's bittersweet economy: Seven years after the industry agreed to abolish child labor, little progress has been made, Fortune 1 (15 February 2008).Google Scholar

29 Website of the International Programme on the Elimination of Child Labour, ILO: http://www.ilo.org/ipec/areas/Agriculture/lang–en/index.htm (Last Accessed: 20 November 2010) A recent ILO document states that an estimated 26.4% of children between the ages of 5 and 14 in Africa are victims of child labour, thus making it the region where the “least progress has been made during the past years towards the elimination of child labour.” Moreover, most of these children are employed in agriculture. The report also cites the “persistent lack of basic and social infrastructure and adequate livelihood for their families” as the main reasons for the deterioration of the child labour situation in Africa: Action against child labour 2008 – 2009: IPEC progress and future priorities, International Programme on the Elimination of Child Labour (Geneva, February 2010), 17.Google Scholar

30 Buyer concentration may not lead to dominance if a number of factors are present, such as, but not limited to, the ease of entry into either the buyer's or the seller's market.Google Scholar

31 In certain situations, producers may fare better under a monopsonistic market (a market with only one buyer) rather than under an oligopolistic market (a market with a small number of powerful buyers). An example of this would be agricultural marketing boards run in the public interest, rather than for a profit motive. See, S. Murphy, Concentrated Market Power and Agricultural Trade, Ecofair Trade Dialogue, Discussion Paper No. 1, 31–32 (2006), available at: http://www.tradeobservatory.org/library.cfm?refid=89014. (Last Accessed: 20 November 2010)Google Scholar

32 See, U.N. FAO Legal Office, The Right to Food in National Constitutions, in THE RIGHT TO FOOD IN THEORY AND PRACTICE, available at: http://www.fao.org/Legal/rtf/bkl.htm#map.Google Scholar

33 Universal Declaration of Human Rights [UDHR] art. 25(1), G.A. Res. 217A (III), U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (12 December 1948).Google Scholar

34 See, Philip Alston, International Law and the Human Right to Food, in The Right to Food, 32 (Philip Alston & Katarina Tomaševski, eds., 1984); Smita Narula, The Right to Food: Holding Global Actors Accountable under International Law, 10 Colum. J. of Trans. L. 691, 706 (2006). Article 11 ICESCR provides:Google Scholar

** (a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources;Google Scholar

** (b) Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.Google Scholar

35 U.N. Econ. & Soc. Council [ECOSOC], Comm. on Econ. Soc. and Cultural Rights, General Comment No. 12: The Right to Adequate Food, § 10, U.N. Doc. E/C.12.1999/5, para. 6 (12 May 1999).Google Scholar

36 International Covenant on Civil and Political Rights, 16 Dec. 1966, 999 UNTS 171 (ICCPR).Google Scholar

37 Narula, supra, note 34, 706.Google Scholar

38 Alston, supra, note 34, 9.Google Scholar

39 Asbjorn Eide, Strategies for the Realisation of the Right to Food, in Human Rights in the Twenty-First Century: a Global Challenge, 466 – 470 (Kathleen E. Mahoney & Paul Mahoney eds., 1993).Google Scholar

40 General Comment No. 12, supra, note 35.Google Scholar

41 Id. para. 6.Google Scholar

42 Id. para. 4.Google Scholar

43 Id. para. 7.Google Scholar

44 Id. para. 8. See, also paras. 9 – 11, and Articles 24(2)(c) and 27 of the Convention on the Rights of the Child [CRC], G.A. Res. 44/25, annex, U.N. GAOR, 44th Sess., Supp. 49 at 167, U.N. Doc. A/44/49 (20 November 1989), (calling upon state parties to take appropriate measures to combat disease and malnutrition by, inter alia, providing adequate nutritious food and clean drinking water); U.N. General Assembly Resolution 57/226: The Right to Food, (affirming “the right of everyone to have access to safe and nutritious food, consistent with the right to adequate food and the fundamental right of everyone to be free from hunger so as to be able fully to develop and maintain their physical and mental capacities.” U.N. GAOR, 57th Sess., Supp. No. 49, U.N. Doc. A/RES/57/226 (2003), 2).Google Scholar

45 Wary Holdings (Pty) Ltd v. Salwo (Pty) Ltd and Anor (CCT78/07) [2008] ZACC 12; 2009 (1) SA 337 (Constitutional Court); 2008 (11) BCLR 1123 (CC) (25 July 2008), para. 85. Footnotes removed.Google Scholar

46 General Comment No. 12, supra, note 35, para. 20. See, also, John Ruggie, Protect, Respect and Remedy: A Framework for Business and Human Rights, Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, (Advance Edited Version), A/HRC/8/5, 18 (7 April 2008). Private actors have an obligation to “respect” the right to food, which means they must ensure, with due diligence, that their actions do not actively harm other individuals’ rights. Professor Ruggie's framework was a product of three years of consultations with participation by business interests.Google Scholar

47 Art. 2(1), International Convention on Economic, Social, and Cultural Rights (ICESCR), and General Comment No. 12, supra, note 35, at paras. 6, 14 and 16. See, also, U.N. Comm. on Econ., Soc. & Cultural Rights [CESCR], General Comment No, 3: The Nature of States Parties Obligations, 5th Sess., para. 2, U.N. Doc. HRI\GEN\1\Rev.1 (1990).Google Scholar

48 General Comment No. 12, supra, note 35, para. 14.Google Scholar

49 Art. 2(1), ICESCR. The “fundamental” right to be free from hunger, in contrast, must be vindicated immediately: General Comment No. 12, supra, note 35, para. 6.Google Scholar

50 U.N. ECOSOC, Sub-Comm. on Prevention of Discrimination & Prot. of Minorities, The New International Economic Order and the Promotion of Human Rights: Report on the Right to Adequate Food as a Human Right, U.N. Doc. E/CN.4/Sub.2/1987/23 (7 July 1987) (submitted by Asbj⊘rn Eide).Google Scholar

51 Narula, supra, note 34, 708 – 711. See, Amnesty Int'l, Zimbabwe: Power and hunger- violations of the right to food, 10–14, 18–29 (2004).Google Scholar

52 General Comment No. 12, supra, note 35, para. 15.Google Scholar

53 Id. Google Scholar

54 Olivier De Schutter, International Human Rights Law. Cases, Materials, References 365 (2010).Google Scholar

55 Stuffed and Starved, 100 – 103. He describes the UFCo's animus against the Arbenz administration as arising out of that government's plans to compulsorily purchase land from UFCo which it had declared as unused on its tax returns. UFCo exercised its connections within the Truman and Eisenhower administrations, specifically through Secretary of State John Foster Dulles, to brand Arbenz as a communist radical. Presidential approval was given in 1954 to launch a coup, which was code-named Operation PBSUCCESS.Google Scholar

56 Narula, supra, note 34, 763. Quoting Joseph Stiglitz, Globalization and its Discontents, 71 (2003): “In Argentina, the French government reportedly weighed in pushing for a rewriting of the terms of concessions for a water utility [Aguas Argentinas], after the French parent company [Suez Lyonnaise] that had signed the agreements found them less profitable than it had thought.”Google Scholar

57 Writ Petition [Civil] No. 196 of 2001 (Supreme Court of India).Google Scholar

58 Fourth Report of the Commissioner to the Supreme Court of India in pursuant to People's Union for Civil Liberties v. Union of India and others (Writ Petition [Civil] No. 196 of 2001) (14 August 2003). Available at: http://www.righttofoodindia.org/data/scfour.doc (last accessed 23 November 2010).Google Scholar

59 Neomi Rao, On the Use and Abuse of Dignity in Constitutional Law, 14 Colum. J. Eur. L. 201, 246 (2008). See, also 221–222: “The socialist aspect of human dignity is also reflected in the positive rights set forth in many modern constitutions… [which] are committed to viewing individual rights within broader social goals and values.”Google Scholar

60 Isaiah Berlin, Four Essays on Liberty, 1vi (1984): “One freedom may abort another; on freedom may obstruct or fail to create conditions which make other freedoms, or a larger degree of freedom, or freedom for more persons, possible; positive and negative freedom may collide; the freedom of the individual or the group may not be fully compatible with a full degree of participation in a common life, with its demands for cooperation, solidarity, fraternity. But beyond all these there is an acuter issue: the paramount need to satisfy claims of other, no less ultimate values: justice, happiness, love, the realisation of capacities to create new things and experiences and ideas, the discovery of the truth. Nothing is gained by identifying freedom proper, in either of its senses, with these values, or with the conditions of freedom, or by confounding types of freedom with one another”Google Scholar

61 See, e.g. Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir.), cert. denied 465 U.S. 1049 (1983), per Judge Posner: “The men who wrote the Bill of Rights were not concerned that Government might do too little for the people but that it might do too much to them.”Google Scholar

62 DeShaney v. Winnebago County Department of Social Services, (1989) 489 U.S.189 (Blackmun, Brennan JJ. dissenting), 194–203.Google Scholar

63 Id. 197–201.Google Scholar

64 See, Human Rights Committee, General Comment No. 31, Nature of the General Legal Obligation Imposed on States Parties to the Covenant (CCPR/C/21/Rev.1/Add.13), para. 8, (26 May 2004):Google Scholar

** “The positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities.”Google Scholar

** See, also Committee Against Torture, Hajrizi Dzemajl et al. v. Serbia and Montenegro, Communication No. 161/2000, decision of 21 November 2002, UN Doc. Cat/C/29?D/161/2000, at para. 9.4 (finding a violation of Article 12 of the Convention for failing to carry out a “criminal investigation … (that) seek(s) both to determine the nature and circumstances of the alleged acts and to establish the identity of any person who might have been involved therein”, in the aftermath of a pogrom against the Roma community in Danilovgrad, now Montenegro). States also have a duty to prevent such human rights violations from occurring: see Committee, Human Rights, Herrera Rubio et al v. Colombia, Communication No. 161/1983, decision of 2 November 1987 and UN Doc. CCPR/C/OP/2 at 192, (1990), paras. 10.3, 11 (finding a violation of Article 6 ICCPR “because the State party failed to take appropriate measures to prevent the disappearance and subsequent killings of Jose Herrera and Emma Rubio de Herrera and to investigate effectively the responsibility for their murders…” at para. 11) and Inter-American Court of Human Rights, Velásquez-Rodriguez v. Honduras (Merits), Judgement of July 29, 1988, Series C No. 4, para. 166 (construing the obligation to “ensure” the free and full exercise of Convention rights): “the States must prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible, attempt to restore the right violated and provide compensation…”Google Scholar

65 Rao, supra, note 59, 221–222: “The socialist aspect of human dignity is also reflected in the positive rights set forth in many modern constitutions… [which] are committed to viewing individual rights within broader social goals and values.”Google Scholar

66 Id. 222–227.Google Scholar

67 Mark Tushnet, The issue of state action/horizontal effect in comparative constitutional law, Int. J. Constitutional L. 79, 79 (2003).Google Scholar

68 Develoment as Freedom, 167. See, generally, 162 – 170.Google Scholar

69 Amartya Sen, Poverty and Famines, 166.Google Scholar

70 There may be some cavil over my characterisation of competition law as a species of private law, rather than of administrative law. Certainly, competition regimes often contain public enforcement bodies, and competition harm is generally seen as harm to the market as a whole, rather than to one or a few specific undertakings. There are two reasons for my choosing to characterise competition law as a form of private law. First, it would be comparatively easier to formulate the argument that administrative laws and procedures should be cognizant of human rights obligations, and I find that in order to properly counter an argument, that argument has to be put at its strongest. Second, one very influential competition regime, the US, operates to a very significant extent through private litigation.Google Scholar

71 Gangi, M., Competition Policy and the Exercise of Intellectual Property Rights, LUISS Working Paper 353, 357 (1999).Google Scholar

72 SPEECH/05/512, available at www.ec/europa/eu, (Last Accessed: 19 November 2010). See, also UK Competition Commission, describing competition as “a process of rivalry between firms… seeking to win customers’ business over time.” Merger References: Competition Commission Guidelines (June 2003, CC 2), para. 1.20; and Market Investigation References: Competition Commission Guidelines (June 2003, CC 2), para. 1.16); U.S. Federal 7th Circuit in University Life Insurance Co. v. Unimarc Ltd., 699 F.2d 846, 853 (7th Cir.) (1983) defining competition as “a state in which consumer interests are well-served rather than as a process of rivalry that is diminished by the elimination of even one tiny rival.”Google Scholar

73 Richard Scheelings & Joshua D. Wright, 'Sui Generis'?: An Antitrust Analysis of Buyer Power in the United States and European Union, 39 Akron L. Rev. 207, 212 (2006).Google Scholar

74 Case T-342/99, Airtours v. Commission [2006] ECR II-2585, para. 277 (General Court), Case 322/81, Michelin v. Commission [1983] ECR 3461, para. 73; Case T-228/97, Irish Sugar v. Commission [1999] ECR II-2969, para. 114; Opinion of Advocate–General Mischo, Case C-163/99, Portugal v. Commission [2001] ECR I-2618, para. 106.Google Scholar

75 Buyer power was in fact one of the primary concerns of the legislators who enacted the Sherman Act, and some of the earliest cases under the Act concerned powerful agricultural buyers: see 21 CONGRESSIONAL RECORD 2461 (1890), statement of Senator John Sherman: “These trusts and combinations … operate as a double-edged sword. They increase beyond reason the cost of necessaries of life and business, and they decrease the cost of raw material, the farm products of the country. They regulate prices at will, depress the price of what they buy and increase the price of what they sell.” Id. 2457, statement of Representative Taylor: (speaking of “trusts”) “… this monster robs the farmer on the one hand and the consumer on the other.”Google Scholar

76 Although the Courts have said very little on the subject, the European Commission has considered buyer power concerns on a number of occasions in its capacity as the merger regulation authority. See, Commission decisions in the mergers of Kesko/Tuko (November 1996) [Commission prohibits merger of two large Finnish chains on the grounds that they would be able to reduce input prices “to an extent that no rival could match”, thus precluding new market entry]; Blokker/Toys ‘R’ Us (June 1997) [Commission prevents merger of two Dutch toy retailers because market power over suppliers were not complemented by economies of scale in purchasing]; Rewe/Meinl (Feb 1999) [Merger of Austrian food retailers approved with conditions]; Carrefour/Promodes (June 2001).Google Scholar

77 Opinion of Advocate–General Maduro in Case C-205/03 P, FENIN v. Commission (2005), para. 66.Google Scholar

78 South African Competition Act 1998, section 2.Google Scholar

79 Id. Chapter 1, para. 3, section 2.Google Scholar

80 384 U.S. 270, 274–75 n.7 (1966) (Black J.).Google Scholar

81 Northern Pac. Ry. v. United States, 356 U.S. 1, 4 (1958).Google Scholar

82 Id. Google Scholar

83 Eleanor M. Fox, The Modernization of Antitrust: A New Equilibrium, 66 Cornell L. Rev. 1140, 1142 – 43 (1981).Google Scholar

84 Eleanor M. Fox, Equality, Discrimination and Competition Law, 41 Harvard Int. L. J. 579, 582 (2000).Google Scholar

85 Citizens United v. Federal Election Commission, 130 S.Ct. 876 (2010).Google Scholar

86 Ronald Dworkin, The Devastating Decision, The New York Review of Books (25 February 2010). Available at: http://www.nybooks.com/articles/archives/2010/feb/25/the-devastating-decision/ (Last Accessed: 23 November 2010).Google Scholar

87 Ronald Dworkin, Is Democracy Possible Here? Principles for a New Political Debate, 128–129 (2006).Google Scholar

88 If anything, Citizens United shows that the U.S. Supreme Court is at any rate positively embracing an unquestioning acceptance of the benevolence of corporate power, given the “marketplace” concept of the freedom of expression underlying Kennedy J.'s opinion.Google Scholar

89 Some may be curious as to how a producer can wield monopsony or dominant buyer power in its input markets while at the same time having nothing of the sort in its downstream product market. Consider the example of a milk pasteurising plant. The input – fresh milk – is highly perishable, and can be viably transported only over a short range before it becomes unsaleable. As such, if there are no other milk processing plants in within this geographical range, that plant will wield buyer power. However, the end product, pasteurised milk, is much less perishable, and can be transported nationally, or even globally. As such, the plant will not probably have any market power in its downstream market.Google Scholar

90 The compounding of losses to consumer welfare is called “double marginalisation.” See, Richard J. Sexton & Mingxia Zhang, An Assessment of the impact of Food Industry Market Power on U.S. Consumers, 17 Agribusiness 59 (2001) and rebutting Oliver E. Williamson, Economies as an Antitrust Defence: the Welfare Trade-Offs, 50 Am. Econ. Rev. 18 (1966). Whereas Williamson argues that both total welfare as well as efficiency are enhanced where market power increases, Sexton and Zhang show that “only extraordinary increases in efficiency could possibly offset the deadweight welfare loss” the occurs when a firm is has power on both buying and selling markets. Op. cit. Peter Carstensen, Buyer Power, Competition Policy and Antitrust: the competitive effects of discrimination among suppliers, 53 Antitrust Bull. 271, 283, (note 26) (2008).Google Scholar

91 Richard Posner, Antitrust Law, 79–86 (2001). Posner demonstrates, on the selling side, that a monopoly could produce at the efficient quantity demanded by society instead of at a level below that, if it was able to effectively charge individual buyers a unique price that was proportionately related to their willingness to purchase. Moreover, he identifies this as the real source of the objection to tying and bundling.Google Scholar

92 Carstensen, supra, note 90, 283 – 284. Carstensen observes the use of “all-or-nothing” clauses in various American agricultural markets between buyers and producers, whereby the buyer requires the seller to supply his total production.Google Scholar

93 See, text pertaining to note 74.Google Scholar

94 It may be observed that whereas farm prices for coffee beans fell by 80% between 1997 and 2002, retail prices for coffee dropped only 27%. At the same time in 2001, Starbucks’ and Nestlé's profits rose by 41% and 20% respectively: Celine Charveriat, Bitter Coffee: How the Poor are Paying for the Slump in Coffee Prices, Oxfam (16 May 2001); op. cit Paul Roberts, The End of Food: The Coming Crisis in the World Food Industry 159 (2008).Google Scholar

95 OECD Policy Roundtable on Competition and Regulation in Agriculture: Monopsony Buying and Joint Selling 8 (2004).Google Scholar

96 UK Competition Commission, Groceries Market Investigation (2008), para. 9.5, 157.Google Scholar

97 Case No. IV/M.1221, Rewe/Meinl, Commission Decision, para. 74. (1999)Google Scholar

98 UK Competition Commission, Groceries Market Investigation (2008), para. 9.63, at 169.Google Scholar

99 See, text pertaining to note 89.Google Scholar

100 The End of Food, 157–158.Google Scholar

101 See, Paul Dobson & Roman Inderst, Differential Buyer Power and the Waterbed Effect: Do Strong Buyers Benefit or Harm Consumers? 28 Eur. Competition L. Rev. 393 (2007) and Paul Dobson & Roman Inderst, The Waterbed Effect: Where Buying and Selling Power Come Together, Wisconsin L. Rev. 331 (2008). As a result of dominant buyers being supplied at lower prices than non-dominant ones, dominant buyers are able to pass on cost savings to end consumers, which only increases the dominant buyer's market share in the downstream market. Thus a vicious circle is set into motion.Google Scholar

102 Of the 52 practices investigated by the Commission, 26 were concerned with “practices that have the potential to create uncertainty for suppliers regarding their revenues or costs as a result of the transfer of excessive risks or unexpected costs to suppliers”. See, UK Competition Commission, Groceries Market Investigation (2008), para. 9.52, at 166–67.Google Scholar

103 Carstensen, supra, note 90, 283 – 284.Google Scholar

104 Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Company, Inc., 549 U.S. 312 (2007)(Thomas J.). The Supreme Court applied to predatory bidding the same test it applies to predatory pricing, as established in Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993). Accordingly, it declined to find that the defendant firm had committed a violation of the Sherman Act by bidding up the price of inputs to an extent that its competitors were priced out of the market. Instead, mirroring of its case law on predatory pricing, it required a demonstration of a dangerous possibility that the defendant firm would be able to subsequently recoup the costs incurred by its predatory bidding, at 324.Google Scholar

105 Such a “discount” may be an explicit reduction in price, or it may come in the form of passing on to the seller certain costs associated with functions normally carried out by the buyer, i.e. grading of the livestock, stocking of shelves, etc.Google Scholar

106 Paul Dobson, Exploiting Buyer Power: Lessons from the British Grocery Trade 72 Antitrust L. J. 532, 554 (2005). The circle would presumably be vicious from the perspective of small sellers.Google Scholar

107 UK Competition Commission, Working Paper on Waterbed Effect (2008), 3–4. Note that the Working Paper was dealing with such effects in the context of retail markets.Google Scholar

108 Id. 6–7.Google Scholar

109 Dobson, Exploiting Buyer Power, supra, note 106, 556.Google Scholar

110 UK Competition Commission, Working Paper on Waterbed Effect (2008), 19.Google Scholar

111 Id. The Working Paper concluded that the “material detriment to UK consumers of groceries” was, “at this stage”, likely to be very small, in light of the objections to a number of the assumptions underlying the waterbed argument. It is to be noted that the Commission did not dismiss the argument out of hand, but maintained that it was dependent upon further empirical research, such that it would “continue to analyse suppliers’ price data”. At 20.Google Scholar

112 Anti-Price Discrimination Act, Pub. L. No. 74–69 2, 49 Stat. 1526 (codified at 15 U.S.C. § 13).Google Scholar

113 Carstensen, supra, note 90, 329–330.Google Scholar

114 Id., 283–284.Google Scholar

115 Randi Ilyse Roth, Redressing Unfairness in the New Agricultural Labor Arrangements: An Overview of Litigation Seeking Remedies for Contract Poultry Growers, 25 U. Mem. L. Rev. 1207 (1995).Google Scholar

116 See, generally Dobson & Inderst, Differential Buyer Power, supra, note 101; and Dobson & Inderst, The Waterbed Effect, supra, note 101.Google Scholar

117 Carstensen, supra, note 90, at 281.Google Scholar

118 Id., 299.Google Scholar

119 See, e.g. U.S. v. United Shoe Machinery Corp., 391 U.S. 244 (1968); Case T-30/89, Hilti AG v. Commission (General Court); Case C-333/94 P, Tetra Pak International SA v. Commission, [1996] ECR I-5951 (ECJ); Case T-201/04, Microsoft Corp v. Commission, [2007] 5 CMLR 11 (General Court).Google Scholar

120 Posner, supra, note 91, 234–238.Google Scholar

121 Carstensen, supra, note 90, 318.Google Scholar

122 De Schutter, Agribusiness Report, supra, note 24, 17, paras. 43 – 45.Google Scholar

123 UK Competition Commission, Groceries Market Investigation (2008), paras. 9.41 and 9.46, 164.Google Scholar

124 Of the 52 practices investigated by the Commission, 26 were concerned with “practices that have the potential to create uncertainty for suppliers regarding their revenues or costs as a result of the transfer of excessive risks or unexpected costs to suppliers”. See, UK Competition Commission, Groceries Market Investigation (2008), para. 9.52, at 166–67.Google Scholar

125 Philip Marsden, Microsoft v. Commission - With Great Power Comes Great Responsibility, Competition Law Insight 3, 4 (October 2007).Google Scholar

126 The End of Food, 157–158.Google Scholar

127 See, supra, note 76.Google Scholar

128 UK Competition Commission, Groceries Market Investigation (2008) para. 7, Appendix 2.2, 2.Google Scholar

129 Microsoft v. U.S., 253 F.3d 34, 58–59 (D.C. Cir.)(1999)Google Scholar

130 Carstensen, supra, note 90, 322–23. See, U.S. v. Visa U.S.A., Inc., 344 F.3d 229 (2nd Cir.) (2003), where the court held that dominant credit card issuers had unreasonably refused to allow participating banks to join other credit card networks.).Google Scholar

131 Such an “economic approach” to the determination of abuses of dominant positions under Art. 102 TFEU (ex Art. 82 EC) has not filtered through the whole of the EC. The EAGCP Consultation Paper, An Economic Approach to Article 82 (July 2005), questioning the prior practice of holding certain activities as per se abusive and disregarding possible pro-competitive effects, is not a binding legal authority, as is the Commission's discussion paper on the application of Art. 102 TFEU (December 2005). At present, only the Commission adheres to an economic approach to Art. 102 TFEU; the General Court and the ECJ appear to remain wedded to the legalistic approach. See, Case T-340/03, France Télécom SA v. Commission and Case T-201/04, Microsoft Corp v. Commission (General Court), as well as Case C-95/04, British Airways v. Commission (ECJ). It is submitted that the economic approach is preferable from a purely theoretical point of view. However, proving harm to competition may be very difficult, especially if it is as remote and indirect (as may be the case in all-or nothing contracts), meaning that in practice, there is the danger of under-regulation if one takes the economic approach.Google Scholar

132 But note that there is an important school of thought that argues that vertical restraints should be investigated only where the producer wields market power: see e.g. Barbara A. White, Vertical Restraints in Antitrust Law – a Coherent Model, 26 Antitrust Bull. 327 (1981); Frank H. Easterbrook, Vertical Agreements and the Rule of Reason, 53 Antitrust L. J. 135 (1984).Google Scholar

133 Commission Regulation 2790/99, OJ [1999] L 336/21, [2000] 4 CMLR 398. Expired 31 May 2010.Google Scholar

134 Commission Notice, Guidelines on Vertical Restraints, OJ [2000] C 291/1, [2000] 5 CMLR 1074, para. 21.Google Scholar

135 Commission Notice, Guidelines on Vertical Restraints, Brussels, SEC (2010) 411. Available at: http://ec.europa.eu/competition/antitrust/legislation/guidelinesverticalen.pdf.Google Scholar

136 Id. para. 23.Google Scholar

137 Draft Commission Notice, Guidelines on Vertical Restraints, para. 23.Google Scholar

138 Id. paras. 8–11.Google Scholar

139 UK Competition Commission, Groceries Market Investigation (2000), para. 2.458.Google Scholar

140 See, Cass Sunstein, Irreversible and Catastrophic, 91 Cornell L. Rev. 841 (2006). The precautionary principle, or various expressions thereof, is found in a number of legal and policy instruments and pronouncements, both domestic and international: e.g. Bergen Ministerial Declaration on Sustainable Development in the ECE Region, U.N. Econ. Comm'n for Europe, Bergen, Noway, 8–16 May 1990; UN Conference on Environment and Development, Rio Declaration on Environment and Development, princ. 15, U.N. Doc. A/CONF.151/26/Rev.1 (Vol. I) (1 January 1993); San Francisco, California Environment Code, Chapter 1, section 101, etc. Sunstein posits that there are a number of precautionary principles: namely the Irreversible Harm, Catastrophic Harm and Hazardous Precautions varieties. The argument made by the UK Competition Commission appears to be most akin to the Catastrophic Harm variant, which essentially states that where “risks have extremely bad worst-case scenarios, it makes sense to pay special attention to those risks, even if they are unlikely to come to fruition, and even if existing information does not enable regulators to make a reliable judgment about the probability that they will occur.” At 846.Google Scholar

141 Id. Google Scholar

142 Application No. 33218/96, (2002).Google Scholar

143 Id. para. 99.Google Scholar

144 Id. Google Scholar

145 See, Recitals 2 and 3 of the common preamble to the ICESCR and ICESCR; General Comment No. 3, supra, note 47:Google Scholar

** In this regard, the Committee reaffirms that the rights recognized in the Covenant are susceptible of realization within the context of a wide variety of economic and political systems, provided only that the interdependence and indivisibility of the two sets of human rights, as affirmed inter alia in the preamble to the Covenant, is recognized and reflected in the system in question.Google Scholar

** and General Comment No. 9.: The domestic application of the Covenant, UN Committee on Economic, Social and Cultural Rights, HRI/GEN/1/Rev.7, para. 10 (12 May 2004):Google Scholar

** The adoption of a rigid classification of economic, social and cultural rights which puts them, by definition, beyond the reach of the courts would thus be arbitrary and incompatible with the principle that the two sets of human rights are indivisible and interdependent.Google Scholar

146 Eleanor M. Fox, Antitrust and Regulatory Federalism: Races Up, Down and Sideways, 75 N.Y.U. L. Rev. 1781, 1798 (2000); Eleanor M. Fox, The Modernization of Antitrust: A New Equilibrium, 66 Cornell L. Rev. 1140, 1151–52 (1981).Google Scholar

147 See, Ronald Dworkin, Law's Empire, 286–288 (1986).Google Scholar

148 Yane Svetiev, Antitrust Governance: The New Wave of Antitrust, 38 Loyola U. Chi. L. J. 608 (2007).Google Scholar

149 Id. 608–609.Google Scholar

150 See, Amartya Sen, Missing Women (1992) British Medical Journal 304.Google Scholar

151 Development as Freedom, 20.Google Scholar

152 Karen Kong, The Right to Food for All: A Right-Based Approach to Hunger and Social Inequality, 32 Suffolk Transnat'l L. Rev. 525, 533, 552 (2009).Google Scholar

153 Individual agricultural contracts can indeed be pro-competitive and advance human rights simultaneously if the buyer makes available to smallholders credit facilities to be used for buying equipment, fertiliser, etc; technical advice, and other equitable conditions, such as predetermined prices, minimum income, and penalty clauses for default by buyers: De Schutter, Agribusiness Report, supra, note 24, 17. Essentially, the buyer is paying for his added security of supply. See, also Spencer Henson, Oliver Masakurea and David Boselie, Private food safety and quality standards for fresh produce exporters: the case of Hortico Agrisystems, Zimbabwe, 30(4) Food Policy 371 (August 2005); On the risks inherent in contract farming, see Peter D. Little and Michael J. Watts, Living under Contract: Contract Farming and Agrarian Transformation in Sub-Saharan Africa (1994).Google Scholar

154 Ruggie, supra, note 46, 8.Google Scholar

155 See, X and Y v. The Netherlands, judgment of 25 March 1985, Series A, No. 91 (ECHR): “although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life…. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (…) the protection afforded by the civil law in the case of wrongdoing of the kind inflicted on Miss Y is insufficient. This is a case where fundamental values and essential aspects of private life are at stake. Effective deterrence is indispensable in this area and it can be achieved only by criminallaw provisions; indeed, it is by such provisions that the matter is normally regulated.Google Scholar

156 Tushnet, supra, note 67, 96.Google Scholar

157 See, the Lüth judgment of the German Constitutional Court, 7 BVerfGe 198 (1958) (held that while the primary purpose of basic rights is to protect individuals against public power, the German Basic Law also established “an objective order of values” that must be considered as a fundamental constitutional decision affecting all spheres of law.); and the Supreme Court of Canada in Retail, Wholesale & Department Store Union, Local 580 v. Dolphin Delivery Ltd. [1986] 2 SCR 573 (McIntyre J.) (holding that while the rights contained in the Canadian Charter of Fundamental Rights and Freedoms would not invalidate rules of judge-made common law at issue in private litigation, courts ought nevertheless to apply and develop the principles of the common law in a manner consistent with Charter values).Google Scholar

158 See, Philip Marsden & Simon Bishop, Editorial: Intellectual Leaders Still Need Ground to Stand On, 3.2 Eur. Competition J. 315, 315 (2007): reporting that the Judge Cooke of the EU General Court (formerly the Court of First Instance) stated that “I tell my clerks that these cases are 20 percent fact, 20 percent law, and 60 percent policy”.Google Scholar

159 Opinion of Advocate General Eleanor Sharpston, Case C-73/08, Nicolas Bressol and Others and Celine Chaverot and Others v. Gouvernement de la Communauté française, para. 136 (25 June 2009).Google Scholar

160 See, e.g. Article 1, German Basic Law: (“Human dignity is inviolable”); Sec. 1, Constitution of the Republic of South Africa 1996: (“The Republic of South Africa is one, sovereign, democratic state founded on the following values: (a) Human dignity, the achievement of equality and the advancement of human rights and freedoms…”); Art. 1, European Charter of Fundamental Freedoms: (“Human dignity is inviolable. It must be respected and protected.”)Google Scholar

161 Case 37971/97, Société Colas Est v France and others (2002) ECHR III-135 (European Court of Human Rights) (Article 8 ECHR infringed by France as a result of inspectors entering applicant's property without a prior judicial warrant); Cases 46/87, Hoechst AG v Commission [1989] ECR 2859, [1991] 4 CMLR 410, (ECJ) para. 19: “… in all the legal systems of the Member States, any intervention by the public authorities in the sphere of private activities of any person, whether natural or legal, must have a legal basis and be justified on the grounds laid down by law, and, consequently, those systems provide, albeit in different forms, protection against arbitrary or disproportionate intervention.”.Google Scholar

162 Woodlands Dairy (Pty) Ltd and Anor v. Competition Commission, (88/CACMar09) [2009] ZACAC 3 (26 September 2009) Competition Appeal Court (South Africa) (unduly vague search warrant); Glaxo Wellcome (Pty) Ltd Others v D. Terblanche Others (03/CAC/Oct00) [2001] ZACAC 2 (5 September 2001) Competition Appeal Court (South Africa) (unduly vague order by lower Competition Tribunal).Google Scholar

163 Section 27(1)(b) of the South African Bill of Rights: “Everyone has the right to have access to … sufficient food and water…”Google Scholar

164 Section 8(1) of the South African Bill of Rights: providing that private persons may be fixed with obligations under the Bill of Rights “if, and to the extent that, it is applicable, taking into account the nature of any duty imposed by the right.”Google Scholar

165 South African Human Rights Commission, Submission to the Competition Commission South Africa in the Matter of the Competition Commission, Tiger Brands Limited and Adcock Ingram Critical Care (Pty) Ltd, Case no. 15/CR/Feb07. The bread manufacturer, Tiger Brands subsequently settled with the Commission, but another member of the cartel, Pioneer Foods, was found liable and fined 195 million rand: Competition Commission v. Pioneer Foods (Pty) Ltd., Case nos. (15/CR/Feb07) (50/CR/May08), reasons issued (3 Feb 2010). I am grateful to Dr. Christine Jesseman for providing me these references.Google Scholar

166 Michael Pollan, The Food Issue - An Open Letter to the Next Farmer-in-Chief, New York Times (12 October 2008).Google Scholar

167 United States v. Aluminum Co. of America (Alcoa) 148 F 2d 416, (2d Cir.) 444 (1945).Google Scholar

168 Hartford Fire Insurance Co., v. California, 509 US 764 (1993).Google Scholar

169 United States v. LSL Biotechnologies, 379 F.3d 672 (9th Cir.)(2004).Google Scholar

170 Id., paras. 45–46.Google Scholar

171 Case 114/85, Ahlström Oy v. Commission [1988] ECR 5193 (Wood Pulp) (ECJ).Google Scholar

172 Case T-102/96, Gencor Ltd. v. Commission [1999] II-753 (General Court).Google Scholar

173 Id., para. 94.Google Scholar

174 Id. paras. 96–98.Google Scholar

175 Olivier De Schutter, Extraterritorial Jurisdiction as a tool for improving the Human Rights Accountability of Transnational Corporations, Background Paper for Seminar organised in collaboration with UN High Commissioner for Human Rights, Brussels, 23, (note 93) (2006) and Andreas Löwenfeld, International Litigation and the Quest for Reasonableness, 33–41 (1996); Derek W. Bowett, Jurisdiction: Changing Patterns of Authority over Activities and Resources, 7 (1982). Moreover, De Schutter notes that “In their joint separate opinion to the judgment of 14 February 2002 delivered by the International Court of Justice in the Case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judges Higgins, Kooijmans, and Buergenthal seem to share this reading of developments in European Union law.”Google Scholar

176 Roth, P.M., Reasonable Extraterritoriality: Correcting the ‘Balance of Interests', 41 Int. Comp. L. Q. 267, 285 (1992).Google Scholar

177 Narula, supra, note 34, 728 – 729.Google Scholar

178 General Comment No. 12, supra, note 35, para. 14. The ESCR Committee has used a similar formulation for a number of other rights under the Convention: See, U.N. CESCR, General Comment No, 4: The right to adequate housing, 7th Sess., para. 13, U.N. Doc. E/1992/23 (1992); U.N. CESCR, General Comment 13: The right to education, 21st Sess., paras. 6(a), (b), U.N. Doc. E/C.12/1999/10 (1999); U.N. CESCR, General Comment No, 14: The right to the highest attainable standard of health, 22d Sess., paras. 12(b), 51, U.N. Doc. E/C.12/2000/4 (2000); U.N. CESR, General Comment No. 15, U.N. Doc. E/C.12/2002/11 (2003), paras. 12(c), 31, 44(b), 53; U.N. CESCR, General Comment No. 8: The relationship between economic sanctions and respect for economic, social and cultural rights, 17th Sess., para. 10, U.N. Doc. E/C.12/1997/8 (1997); U.N. CESCR, General Comment No. 9: The domestic application of the Covenant, 19th Sess., para. 9, U.N. Doc. E/C. 12/1998/24 (1998).Google Scholar

179 U.N. ESOCOR, Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, 24th Sess., U.N. Doc E/C.12/2000/13, para. 16 (2000).Google Scholar

180 See, e.g. ECHR cases of Loizidou v. Turkey, 23 Eur. H.R. Rep. 513, para. 52 (1996); Bankovic v. Belgium and Others, App. No. 52207/99, Eur. Ct. H.R. (2001); Issa and Others v. Turkey, App. No. 31821/96, Eur. Ct. H.R. (2004); Ilascu v. Moldova and Russia. American Convention on Human Rights case of Coard et al. v. U.S., Case 10.951, Inter-Am. C.H.R., Rep. No. 109/99, para. 37 (1999).Google Scholar

181 Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, I.C.J. 136, para. 112 (2004).Google Scholar

182 Olivier De Schutter, International Human Rights Law. Cases, Materials, References, 124 (2010).Google Scholar

183 Legal Consequences of the Construction of a Wall, para. 112.Google Scholar

184 Narula, supra, note 34, 734.Google Scholar

185 Markus W. Gehring, Sustainable Competition Law, Conference Paper for the 2003 Fifth Session of the Ministerial Conference of the World Trade Organisation, 2 (Cancun, Sept. 10–14, 2003).Google Scholar

186 Taimoon Stewart, Julian Clarke and Susan Joekes, Competition Law in Action: Experiences from Developing Countries, International Development and Research Centre, 26–41 (2007).Google Scholar

187 Ruggie, supra, note 46, at 5. Prof. Ruggie provides by way of example a recent instance where a European mining company challenged South African laws meant to advance the economic standing of black citizens. See, Piero Foresti, Laura de Carli and others v. Republic of South Africa, International Centre for the Settlement of Investment Disputes, case no. ARB (AF)/07/1.Google Scholar

188 Narula, supra, note 34, 734.Google Scholar

189 Sornarajah, M., The International Law on Foreign Investment, 169 (2004).Google Scholar

190 U.N. Committee on Economic, Social, and Cultural Rights, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), U.N. Doc. E/C.12/2000/4, para. 39 (2000). It is not entirely clear whether this obligation arises under its duty to protect the human rights of all individuals under its jurisdiction, or whether it is one of international cooperation, which I will explore in the subsequent section.Google Scholar

191 HRC, Delia Saldias de Lopez Burgos v Uruguay, Comm. No. 52/1979, paras. 12.1–12.3 (29 July 1981); Lilian Celiberti de Casariego v. Uruguay, Comm. No. 56/1979, para 10.3 (29 July 1981). The ECtHR, on the basis of the HRC pronouncements, has concluded that: “Article 1 of the Convention cannot be interpreted so as to allow a State party to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory” in Issa a. o. v. Turkey, Appl. No. 31821/96, para. 71 (16 November 2004) and Isaak v. Turkey (Dec.), Appl. No. 44587/98, para. 19 (28 September 2006) and Solomou v. Turkey, Appl. No. 36832/97, para. 45 (24 June 2008) and Andreou v. Turkey (Dec), Appl. No. 45653/99, 10 (03 June 2008) and Al-Saadoon and Mufdhi v. United Kingdom (Dec), Appl. No. 61490/08, para. 85 (30 June 2009). I am grateful to Violeta Moreno-Lax for these references.Google Scholar

192 Article 11(2) ICESCR.Google Scholar

193 General Comment No. 3, supra, note 47, para. 14.Google Scholar

194 TD/RBP/CONF.5/7/Rev.3, Model Law on Competition, United Nations Conference on trade and Development, United Nations (“UNCTAD Model Law”), Section E, paras. 7–9 (2007); Section F, paras. 6 & 7, which provide for the exchange of competition expertise between states, the setting up and financing of courses under the aegis of the UN. See, also the UNCTAD website on training courses offered in Geneva or by correspondence: http://www.unctad.org/Templates/Page.asp?intItemID=4116&lang=1 (Last Accessed: 23 November 2010).Google Scholar

195 See, the Closer Economic Relations Agreement, entered into force between Australia and New Zealand on 1 January 1983.Google Scholar

196 Geoffrey Robertson, The Justice Game, 98 (1998).Google Scholar

197 Fons Coomans, Some Remarks on the Extraterritorial Application of the International Covenant on Economic, Social and Cultural Rights, in Extraterritorial Application of Human Rights Treaties, 196 (Fons Coomans & Menno Kamminga eds.)(2004).Google Scholar

198 General Comment No. 15, supra, note 178, para. 31.Google Scholar

199 See, Immanuel Kant, Perpetual Peace, (1795); John Rawls, The Law of Peoples (1999).Google Scholar

200 Is Democracy Possible Here, 97.Google Scholar

201 US Declaration of Independence, (1776).Google Scholar

202 Supreme Federal Tribunal, Statement of Breach of Fundamental Provision [Arguição de Descumprimento de Preceito Fundamental (ADPF)], N° 153, Judgment [Acordão] 29 April 2010. Applicant: Federal Bar Association of Brazil [Conselho Federal Da Ordem Dos Advogados Do Brasil], on the reach of the Brazilian amnesty Law (Law No. 6.683/1979)(Brazil). Available at: http://www.stf.jus.br/portal/jurisprudencia/listarJurisprudencia.asp?s1=%28153.NUME.+OU+153.ACMS.%29%28PLENO.SESS.%29&base=baseAcordaos (Last Accessed: 23 November 2010). I am grateful to Matthias Sant'ana for this reference.Google Scholar

203 Allen Buchanan & Robert Keohane, The Legitimacy of Global Governance Institutions, 20(4) Ethics and Int. Affairs 405, 416 (2006).Google Scholar

204 Daniel Bodansky, The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?, 93 Am. J. Int. L. 596, 600 (1999).Google Scholar

205 Genesis 19:8 – 19:9 [destruction of Sodom and Gomorrah].Google Scholar

206 This is where I part company from Rawls. See, Law of Peoples, 75 – 78, which considers as a minimally “decent” society, one which refrains from persecuting minorities and which observes due process of law.Google Scholar

207 See, generally John Rawls, A Theory of Justice (2005) and Justice as Fairness (2001).Google Scholar

208 An interesting exception to this general rule is found in Part 1 of the UK Representation of the People Act 2000 (c.2), which provides that Commonwealth and Irish citizens may vote in Parliamentary elections [section 1(c)], and in elections for local government [section 2(c)]. It appears to be a gesture of contrition for centuries of colonial rule.Google Scholar

209 Ronald Dworkin, The Sovereign Virtue, 6 (2002) and Thomas Nagel, The Problem with Global Justice, 33(2) Phil. & Pub. Affairs 113, 126 (2004).Google Scholar

210 Nagel, supra, note 208, 130–133.Google Scholar

211 Article 46(1), Havana Charter, available at: http://www.wto.org/English/docse/legale/havanae.pdf (Last Accessed: 23 November 2010).Google Scholar

212 Robert D. Anderson & Hannu Wager, Human Rights, Development, and the WTO: the cases of intellectual property and competition policy, 9 J. Int. Econ. L. 707, 736 (2006).Google Scholar

213 Id., 738.Google Scholar

214 Id. See, also, Robert D. Anderson & Frederic Jenny, Competition Policy, Economic Development and the Possible Role of a Multi-lateral Framework on Competition Policy: Insights from the WTO Working Group on Trade and Competition Policy, in Erlinda Medalla ed., Competition Policy in East Asia, Chapter 4 (2005).Google Scholar

215 Amartya Sen, Idea of Justice, 373 (2009).Google Scholar

216 See, generally, the works of Amitai Etzioni, Mary Ann Glendon, David Selbourne.Google Scholar

217 West Virginia State Bd. of Education v. Barnette, 319 U.S. 624, 639 – 640 (1943).Google Scholar

218 Case 322/81, Nederlandsche Banden-Industrie Michelin v. Commission [1983] ECR 3461, [1985] 1 CMLR 282, para. 57.Google Scholar