Cartels and the Right to Food: An Analysis of States’ Duties and Options

Hunger has complex causes and can be exacerbated by the actions and/or inactions of various actors, such as states, intergovernmental organizations, and transnational corporations. Globalization has stretched food supply chains worldwide, with an accompanying increase in the harm upon the right to food (RTF) being imposed by extraterritorial parties (whether transnational corporations, foreign states, or intergovernmental organizations). The RTF under international human rights law accommodates the complexities of this, and presents states with a variety of obligations and/or responsibilities within a framework that seeks to respect, protect, and fulfil the RTF. This article will focus on one discrete yet widespread aspect of distortions in agricultural markets and food systems in general, namely collusive price-fixing cartels. The existing literature has largely ignored the nexus of these important issues. First, this article will analyse the (scale of the) effects of such cartels on the RTF. Secondly, it will then examine the respect–protect–fulfil obligations and/or responsibilities of states to regulate such cartels in light of this, embedding the analysis of the problem posed by cartels (and the potential solutions thereto) within this framework. States, with regards to cartels involving transnational corporations in the food sector, have obligations and/or responsibilities to take all appropriate measures to tackle the problem. Such measures include using competition law to regulate the behaviour of transnational corporations and other market participants. Thirdly, this article will examine how competition law and similar mechanisms might yet be developed into effective tools to help states to meet these obligations and/or responsibilities regarding the RTF and to mitigate the effects of cartels upon this, notwithstanding the lack of consensus regarding competition law at the Ministerial Conferences of the World Trade Organization held in Doha and Cancún. This article concludes that hunger in the 21st century is a many-headed monster, and that the RTF obliges all states to assess and adapt all possible tools at their disposal—competition law included—to tackle one particular head of that monster: the impact of cartels on the RTF.