by Mr Jean Ziegler, Special Rapporteur ( 2000-April 2008) on the right to food of the UN Commission on Human Rights
In April 2000, the United Nations Commission on Human Rights appointed a Special Rapporteur to examine the right to food. In his first three reports (2001–2003), Mr Jean Ziegler, who took up the post, spent much of his time establishing the mandate. This item consists of extracts on the following areas: Foodjustice2.jpg
Definition of the right to food;
The right to food in international instruments;
The right to food in domestic legislation;
Justicability of the right to food;
The right to food in humanitarian law;
Water and the right to food; and,
Violations of the right to food by the Government of Myanmar (Burma).
This page is organized thematically, not according to the order in which the Special Rapporteur originally discussed the concepts. It also does not cover every aspect of each concept raised by the Special Rapporteur. Full reports may be found on the UN Commission on Human Rights website, and can be accessed via links in the website of the Permanent People’s Tribunal on the right to food and the rule of law in Asia (www.foodjustice.net/links).
DEFINITION OF THE RIGHT TO FOOD
(E/CN.4/2001/53, paras 14–21; 26–31; E/CN.4/2002/58, paras 20, 26–27; E/CN.4/2003/54, para. 17)
How is the right to food defined? There are several answers to this question, with minor variations, including the definition derived from the International Covenant on Economic, Social and Cultural Rights (“the Covenant”) and from General Comment No. 12 adopted in May 1999 by the Committee on Economic, Social and Cultural Rights, the body responsible for monitoring the implementation of the Covenant. The definition used in the remainder of this report is as follows: the right to food is the right to have regular, permanent and free access, either directly or by means of financial purchases, to quantitatively and qualitatively adequate and sufficient food corresponding to the cultural traditions of the people to which the consumer belongs, and which ensures a physical and mental, individual and collective, fulfilling and dignified life free of fear.
This definition tries to capture the dimension of human suffering that is missing from many formal descriptions of food insecurity: the unbearable, nagging dread that tortures starving persons from the moment they wake up. How, during the day that lies ahead, will they be able to feed their family, provide nourishment for their children and feed themselves? This dread may be even more terrible than the physical suffering and the many aches and diseases that strike an undernourished body.
The corollary of the right to food is food security. This is the definition given in the first paragraph of the World Food Summit Plan of Action: “Food security exists when all people, at all times, have physical and economic access to sufficient, safe and nutritious food to meet their dietary needs and food preferences for an active and healthy life.” The parameters for food security vary with age: at birth, babies need 300 calories a day; between the ages of one and two, 1,000 calories a day; by the age of five, children need 1,600 calories a day. To maintain their strength every day, adults need between 2,000 and 2,700 calories, depending on where they live and what kind of work they do.
A distinction should be drawn between two concepts: hunger or undernourishment on the one hand, and malnutrition on the other. Hunger or undernourishment refer to an insufficient supply or, at worst, a complete lack of calories. Malnutrition, on the other hand, is characterized by the lack or shortage, in food which otherwise provides sufficient calories, of micronutrients -chiefly vitamins (organic molecules) and minerals (inorganic molecules). These micronutrients are vital for the functioning of cells and especially of the nervous system. A child may be receiving sufficient calories but if it lacks micronutrients it will suffer from stunted growth, infections and other disabilities. What the United Nations Children’s Fund (UNICEF) calls “hidden hunger” is undernourishment and/or malnutrition between birth and the age of five, and it has disastrous effects: a child suffering from undernourishment and/or malnutrition in the first years of life will never recover. He cannot catch up later and will be disabled for life.
The concept of the right to food is made up of different components. The first of these is the notion of adequate food, as set forth in article 11, paragraphs 1 and 2, of the Covenant. In its General Comment No. 12, the Committee on Economic, Social and Cultural Rights gives the following definition:
“The right to adequate food is realized when every man, woman and child, alone or in community with others, [has] physical and economic access at all times to adequate food or means for its procurement. The right to adequate food shall therefore not be interpreted in a narrow or restrictive sense which equates it with a minimum package of calories, proteins and other specific nutrients. The right to adequate food will have to be realized progressively. However, States have a core obligation to take the necessary action to mitigate and alleviate hunger … even in times of natural or other disasters.”(HRI/GEN/1/Rev.4, p. 58, para. 6).
Two other components of the concept of the right to food are the notions of adequacy and sustainability:
“The concept of adequacy … serves to underline a number of factors which must be taken into account in determining whether particular foods or diets that are accessible can be considered the most appropriate under given circumstances … The notion of sustainability is intrinsically linked to the notion of adequate food or food security, implying food being accessible for both present and future generations. The precise meaning of ‘adequacy’ is to a large extent determined by prevailing social, economic, cultural, climatic, ecological and other conditions, while ‘sustainability’ incorporates the notion of long-term availability and accessibility” (ibid., para. 7).
A further component is the notion of a diet:
“Dietary needs implies that the diet as a whole contains a mix of nutrients for physical and mental growth, development and maintenance, and physical activity that are in compliance with human physiological needs at all stages throughout the life cycle and according to gender and occupation” (ibid., p. 59, para. 9).
According to the definition of the concept of the right to food, everyone has the right to
food corresponding to their own particular culture:
“Cultural or consumer acceptability implies the need also to take into account … perceived non-nutrient-based values attached to food and food consumption and informed consumer concerns regarding the nature of accessible food supplies” (ibid.,p. 59, para. 11).
Lastly, there is the component of accessibility:
“Economic accessibility implies that personal or household financial costs associated with the acquisition of food for an adequate diet should be at a level such that the attainment and satisfaction of other basic needs are not threatened or compromised. Economic accessibility applies to any acquisition pattern or entitlement through which people procure their food and is a measure of the extent to which it is satisfactory for the enjoyment of the right to food” (ibid., para. 13).
All human beings, regardless of their sex, age, social status and ethnic or religious origin, have the right to food. The existence of this right gives rise to obligations for States. Asbjørn Eide, in his outstanding report on the right to adequate food [Right to Adequate Food as a Human Right, United Nations, New York, 1989] sets out three main obligations that can be paraphrased as follows: to respect, protect and fulfil the right to food.
A State that respects the right to food of the people living in its territory should ensure that every individual has permanent access at all times to sufficient and adequate food, and should refrain from taking measures liable to deprive anyone of such access. An example of a practice that violates this right is when a Government at war with part of its own population deprives the part of the population it sees as “hostile” of access to food. Another example of non-observance of the right to food by a Government, described by the Special Rapporteur on the situation of human rights in the Sudan, is the tragedy of Bar-el-Ghazal, where tens of thousands of people died of starvation in 1998. Muraheleen militia supported by the Government in Khartoum pursued a counter-insurgency strategy characterized (according to the Special Rapporteur) by the following human rights violations: looting of grain, abduction of women and children as spoils of war, burning of crops and homes, killing of civilians and cattle-rustling. The Special Rapporteur backs the conclusions of an NGO working in the region that “but for these human rights abuses, there would have been no famine in the Sudan in 1998” (E/CN.4/1999/38/Add.1, paras. 49 and 50). The case cited is a clear violation of the obligation to respect the right to food.
The second obligation that States must meet is to protect the right to food. Under this obligation, they must ensure that individuals and companies do not deprive people of permanent access to adequate and sufficient food. The Permanent Representative of Algeria to the United Nations Office at Geneva, and Chairman of the Working Group on the Right to Development, maintains that the right to food is what might be termed a “matrix” right, that is, it is a “matrix” for other rights such as the right to development. In most cases, access to food is a question of affordability, and therefore income. This second obligation imposes a number of duties on the State, such as the duty to promote production, redistributive taxation and social security or to combat corruption.
The question of agrarian reform is particularly important in this respect. Several social movements around the world are currently campaigning to force their Governments to fulfil this second obligation…
The State’s third obligation is to “fulfil” the right to food. General Comment No. 12 summarizes this obligation as follows:
“… whenever an individual or group is unable, for reasons beyond their control, to enjoy the right to adequate food by the means at their disposal, States have the obligation to fulfil (provide) [the right to food] directly” (HRI/GEN/1/Rev.4, p. 60, para. 15).
An appeal by a State for international humanitarian aid, when it is itself unable to guarantee the population’s right to food, comes under this third obligation. States which, through neglect or misplaced national pride, make no such appeal or deliberately delay in making it (as in the case of Ethiopia under the dictatorship of Haile Menguistu in the early 1980s) are violating this obligation…
The three obligations placed on States by virtue of the existence of the right to food also apply to intergovernmental organizations, particularly the United Nations. There can be little doubt that the Security Council, in subjecting the Iraqi people to a harsh economic embargo since 1991, is in clear violation of its obligation to respect the right to food of people in Iraq…
Persistent hunger is neither inevitable, nor acceptable. Hunger is not a question of fate; it is manmade. It is the result either of inaction, or of negative actions that violate the right to food. It is therefore time to take action. It is time to recognize the right to food as a human right and to realize the right to food across the world. The human right to food entails an obligation to ensure that each and every human being on this planet should be free from hunger…
If people believe that we should not let people die from starvation, that we should not let people be mentally and physically retarded by constant malnourishment, then they will believe in the right to food. The right to food is inherent in everyone as a human being. Hunger and malnourishment are not the result of fate, they are the result of human actions. There are always actions that can be taken to prevent hunger, prevent famine, prevent people dying from starvation. So, why do States not take this action? One step that can be taken is to make the right to food a reality. This would make a difference.
INTERNATIONAL INSTRUMENTS ON THE RIGHT TO FOOD
(E/CN.4/2001/53, paras 40, 43–45, 47)
International Covenant on Economic, Social and Cultural Rights
This international instrument, which has been ratified by 142 States, deals with the right to food more comprehensively than any other treaty. In article 11, paragraph 1, States parties recognize “the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions”. In paragraph 2 of the same article, they recognize that measures may be needed to guarantee “the fundamental right of everyone to be free from hunger”. States parties shall take, individually and through international cooperation, the measures, including specific programmes, which are needed:
“(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 resources;
“(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.”
International Covenant on Civil and Political Rights
The right to life is enshrined in article 6 of this Covenant, which has been ratified by 145 States. The Human Rights Committee, the body responsible for monitoring implementation of the Covenant, insists that this right should not be interpreted in a restrictive way. On the contrary, the required protection of the right to life obliges States parties to take positive steps in at least two areas, which go much further than the “individual” dimension of the right. In its General Comment No. 6 on article 6, the Committee considers that “States have the supreme duty to prevent wars, acts of genocide and other acts of mass violence causing arbitrary loss of life” (HRI/GEN/1/Rev.4, p. 85, para. 2). States parties are required to take positive steps “to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics” (ibid., p. 86, para. 5).
Universal Declaration on the Eradication of Hunger and Malnutrition
The first World Food Conference was held in Rome in November 1974; on 16 November, it adopted a declaration, in which it solemnly declared that:
“1. Every man, woman and child has the inalienable right to be free from hunger and malnutrition in order to develop fully and maintain their physical and mental faculties. Society today already possesses sufficient resources, organizational ability and technology and hence the competence to achieve this objective. Accordingly, the eradication of hunger is a common objective of all the countries of the international community, especially of the developed countries and others in a position to help.”
The Declaration goes on to say that it is a fundamental responsibility of Governments
“to work together for higher food production and a more equitable and efficient distribution of food between countries and within countries” (para. 2). Moreover, priority should be given to attacking “chronic malnutrition and deficiency diseases among the vulnerable and lower income groups” (para. 2). In sum, “As it is the common responsibility of the entire international community to ensure the availability at all times of adequate world supplies of basic food-stuffs by way of appropriate reserves, including emergency reserves, all countries should cooperate in the establishment of an effective system of world food security …” (para. 12).
Convention on the Rights of the Child
In implementing this instrument, which has been ratified by no less than 191 States, States parties must:
(a) Take appropriate measures to combat disease and malnutrition, including through the provision of nutritious foods and drinking water (art. 24 (2) (c));
(b) Ensure that parents and children are informed about child health and nutrition, the advantages of breastfeeding, hygiene and environmental sanitation (art. 24 (2) (e));
(c) Recognize the right of every child to a standard of living adequate for the child’s physical development (art. 27 (1)) by providing material assistance with regard to nutrition (art. 27 (3));
(d) Secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child (art. 27 (4)); and
(e) Protect the child from economic exploitation and from performing any work that is likely to be hazardous or interfere with the child’s education, or to be harmful to the child’s health or development (art. 32 (1)).
THE RIGHT TO FOOD IN DOMESTIC LEGISLATION
(E/CN.4/2001/53, paras 52–54; 57, 60–61)
<strong>Twenty States in the world have Constitutions which, more or less explicitly and in more or less detail, refer to the right to food or a related norm. One of the most explicit norms is the one contained in the Cuban Constitution, which stipulates in its article 8: ” … by the power of the people and by the will of the people … no child shall be deprived of schooling, food or housing.” No State, however, has yet passed consistent domestic laws ensuring effective protection of the right to food for its population, and especially the most vulnerable groups, such as women, children and ethnic minorities.
What does effective protection of the individual and collective right to food by domestic law mean? The Committee on Economic, Social and Cultural Rights gives an answer in its General Comment No. 12, in the following terms: “States should consider the adoption of a framework law as a major instrument in the implementation of the national strategy concerning the right to food. The framework law should include provisions on its purpose; the targets or goals to be achieved and the time-frame to be set for the achievement of those targets; the means by which the purpose could be achieved described in broad terms, in particular the intended collaboration with civil society and the private sector and with international organizations; institutional responsibility for the process; and the national mechanisms for its monitoring, as well as possible recourse procedures. In developing the benchmarks and framework legislation, States parties should actively involve civil society organizations.” (HRI/GEN/1/Rev.4, pp. 62-63, para. 29.)
Every right must give rise to a remedy. The right to food, to be effective, is no exception. As stated again in General Comment No. 12:
“Any person or group who is a victim of a violation of the right to adequate food should have access to effective judicial or other appropriate remedies at both national and international levels. All victims of such violations are entitled to adequate reparation, which may take the form of restitution, compensation, satisfaction or guarantees of non-repetition …
“The incorporation in the domestic legal order of international instruments recognizing the right to food, or recognition of their applicability, can significantly enhance the scope and effectiveness of remedial measures and should be encouraged in all cases. Courts would then be empowered to adjudicate violations of the core content of the right to food by direct reference to obligations under the Covenant.
“Judges and other members of the legal profession are invited to pay greater attention to violations of the right to food in the exercise of their functions.
“States parties should respect and protect the work of human rights advocates and other members of civil society who assist vulnerable groups in the realization of their right to adequate food.” (Ibid., p. 63, paras. 32-35).
Many Governments have a natural tendency towards apathy or worse still disguise and lack of transparency. No Government in the world ever likes to admit publicly to the food problems, supply difficulties, or diseases and deficiencies that affect part of its population. The public authorities have to show determination and courage to convene a national conference [or take similar steps]…
What is meant exactly by domestic legislation? General Comment No. 12 refers to the expression “framework law”. The Special Rapporteur believes it would be more realistic to adopt a different approach. Economic, social, cultural and hence nutritional situations tend to be extremely varied and change from one country to another. Trying to adopt a framework law would certainly run into almost insurmountable obstacles. There would be the risk of a framework law falling, either alternately or simultaneously, into several temptations: either it might fail to apprehend or to settle the problems experienced by people in their everyday lives or it might promulgate legislative solutions which are ill-adapted to real social experience, or else it might impose standards which the State would be practically incapable of enforcing.
Much more effective than passing a framework law would be the following approach: the Special Rapporteur would help Governments, institutions and social partners identify social situations, customs and government strategies which prevent the full realization of the right to food. In a predominately rural country, the main obstacle might be its system of unequal land rights; in another case, it might be the very low income of part of the population (which might be remedied by redistributive taxation and subsidies for basic foods), etc. Depending on the type of social situation he encountered, the Special Rapporteur might then advocate selected legislative solutions, especially with a view to eliminating economic, social and cultural obstacles in each case to realization of the right to food.
JUSTICABILITY OF THE RIGHT TO FOOD
(E/CN.4/2002/58, paras 28–47; 50–51; 57, 59–60; 68–69)
The rights-based approach to food security also adds a new and vital element: accountability. States parties to the International Covenant on Economic, Social and Cultural Rights are legally bound to respect, protect and fulfil the right to food. Each Government must be held to account if it does not meet its obligations under international law. However, this will only happen if the justiciability of the right to food is established.
Justiciability is absolutely essential in the fight for the right to food. Why? Because making the right to food justiciable means that people can seek remedy and accountability, if their right to food is violated. If Governments are to be properly held to account for not meeting their obligations under international law, then justiciability of the right to food must be fully established. Accountability requires justiciability. This section reviews the reasons why, in the past, the right to food has not been considered justiciable. For a long time, economic, social and cultural rights have not been considered as justiciable by their very nature, and were not considered equal to civil and political rights. In this section, The Special Rapporteur moves the debate forward, by showing that in fact, the right to food can be understood as justiciable, by its very nature. Furthermore, justiciability at the national level is increasingly becoming a reality.
At the regional and international levels, enforcement mechanisms are becoming stronger. Although enforcement mechanisms are still weak at these levels, particularly for economic, social and cultural rights, they do exist and deserve to be stronger. The right to food must become recognized as justiciable and enforcement mechanisms must be made stronger if Governments are to be held to account for violations of the right to food.
Achieving justiciability of the right to food is a prime objective of the Special Rapporteur. So what does justiciability mean? Essentially, justiciable rights are rights that are capable of being adjudicated by a court of law. The victim of a violation shall be able to bring his/her case before the judiciary and look for an effective remedy to the violation that he/she has suffered from a given State. The Committee on Economic, Social and Cultural Rights in its General Comment No. 12 requires that:
“Any person or group who is a victim of a violation of the right to adequate food should have access to effective judicial or other appropriate remedies at both national and international levels. All victims of such violations are entitled to adequate reparation, which may take the form of restitution, compensation, satisfaction or guarantees of non-repetition … .”
When the enforcement mechanism is a court of law, then the right is justiciable. At the regional and international levels, so far a victim of a violation of the right to food still cannot bring a case before a judge; therefore the right is not justiciable. However, in these cases, the regional and international bodies do have some enforcement capacities, although these are weaker in the case of economic, social and cultural rights than for civil and political rights. The Special Rapporteur examines below these enforcement capacities and looks at the progress that could and should be made. First economic, social and cultural rights will be discussed, especially the right to food, to challenge the view that these rights are not justiciable by their very nature.
The nature of the right to food as a justiciable right
At the 1993 World Conference on Human Rights, States adopted the Vienna Declaration and Plan of Action in which they agreed that:
“all human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.”
This means that economic, social and cultural rights must be treated as equal in importance to civil and political rights. It also means that they must be considered the same in nature and justiciable. Therefore, the enforcement mechanisms put in place to protect economic, social and cultural rights should be just as strong as the enforcement mechanisms that protect civil and political rights. However, these great words have not yet been translated into reality. There is still a belief that economic, social and cultural rights are very different from civil and political rights, and could never be justiciable or properly enforced.
Part of the reason for this is that while 171 States approved by consensus the Vienna Declaration, some States still have an ideological objection to economic, social and cultural rights. For example, in their rejection of the draft resolution A/56/C.3/L.48 on the right to food at the Third Committee of the General Assembly at its fifty-sixth session, the delegation of the United States of America claimed that the proposal implied that citizens had a right to food and could seek legal remedy if this right were denied by their respective States. This means that the delegation of the United States did not consider that the right to food should be justiciable.
Another part of the reason is objection on conceptual and theoretical grounds. In the cold war period, some Western States thought that the nature of the right to food, like other economic, social and cultural rights, was fundamentally different from civil and political rights. It was argued that economic, social and cultural rights were different, by their very nature, and non-justiciable for four reasons: firstly, the right to food was imprecise; secondly, the right to food was subject to the limit of progressive realization; thirdly, the right to food required resources to be provided; and fourthly, that, in the absence of precise national legislation on the right to food, it was difficult for the judiciary to fill the gap that properly belonged to the legislative branch of the State. All these arguments have been used in the past to suggest that the right to food could not be justiciable.
The main argument was that civil and political rights were effectively “negative obligations”, which means that the State must simply refrain from taking actions that stop people from exercising their civil and political rights. This is seen as inexpensive in terms of resources, as it simply implies that the State should not do something. Economic, social and cultural rights, on the other hand, were viewed as “positive obligations” as they require the State to take positive action to improve the living conditions of people. In this case, positive actions must be taken by Governments, which implies the need for resources. Even when economic, social and cultural rights are laid down in national constitutions, these rights are often considered as “directives” or “guidelines” for Governments, rather than as individual rights that are enforceable in courts. This is because, it is suggested, the judiciary should not have power either to adjudicate the right to food, nor to control policies and resources that are the responsibility of the executive branch of Government. Under article 2 of the International Covenant on Economic, Social and Cultural Rights States parties agree to take steps to the maximum of their available resources, “with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means”. In the past, this wording has generally been interpreted as an evolving programme depending upon the goodwill and resources of States rather than an immediate binding legal obligation, backed by sanction of a court of law.
However, as the Committee on Economic, Social and Cultural Rights has pointed out, to put economic, social and cultural rights beyond the reach of courts is arbitrary and incompatible with the Vienna principle that these rights are indivisible and interdependent. It is also well known that even implementing civil and political rights does in fact imply resources. The costs of setting up and training the police force, the military and the judiciary to implement international human rights law is not insignificant. It is also clear that civil and political rights as justiciable rights have only become clear through legal developments and judicial jurisprudence. Similarly, as action is taken in the courts in the name of economic, social and cultural rights, it will become clearer how these rights can be treated as justiciable rights. Further, there are several elements that make the right to food more similar to civil and political rights as commonly still understood. The Special Rapporteur wishes to move beyond these past arguments about the non-justiciability and build a different conceptual framework for the right to food.
Firstly, the right to food, and the measures that must be taken, are laid out quite precisely in article 11 of the International Covenant on Economic, Social and Cultural Rights. Paragraph 1 calls on States to “recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food … and the continuous improvement of living conditions”. Paragraph 2 is more precise, as it demands that States guarantee the fundamental right of everyone to be free from hunger, and asks them to take
“individually and through international cooperation, the measures, including specific programmes, which are needed:
“(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;
“(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.”
Secondly, there are certain limits on the application of the concept of progressive realization of the right to food. In accordance with General Comment No. 12,
“… States have a core obligation to take the necessary action to mitigate and alleviate hunger … even in times of natural or other disasters.”
In addition, General Comment No. 3 provides examples of minimum State obligations of immediate nature and puts some limits on the concept of progressive realization.
The obligation of non-discrimination
Within human rights law, the principle of non-discrimination is not subject to the limitation of progressive realization. Under article 2, paragraph 2, of the International Covenant on Economic, Social and Cultural Rights, the obligation not to discriminate is an immediate duty. Discrimination in access to food on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status cannot be justified under any circumstances, including low levels of resources. This means that it should be ensured, whatever the level of resources, that resources are shared fairly and that specific groups are not discriminated against in the distribution of resources by the State.
The obligation to provide a basic minimum subsistence
There is also a clear minimum core obligation on all States to provide, at the very least, a minimum essential level of economic, social and cultural rights, including the right to food, regardless of the limitation of progressive realization. The minimum core obligation is an immediate obligation, although it is still subject to available resources. As the Committee on Economic, Social and Cultural Rights has clarified:
“In order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.”
This also implies the “principle of non-regression”, which means that Governments must not adopt regressive policies that lead to deterioration in the current situation of access to food.
The obligation to respect
Under the right to food, there are three different levels of obligation – the obligations to respect, protect and fulfil the right to food. While the obligations to protect and fulfil the right to food are certainly positive obligations that require positive actions from the State, the obligation to respect is effectively a negative obligation. This means that States must not take any action that interferes with people’s access to food – such as, for example, destroying their crops or forcibly displacing them from their land or means of subsistence. As stated in the report to the General Assembly, the obligation to respect the right to food entails limits on the exercise of State power that might threaten people’s existing access to food. On the other hand, the obligation to protect requires States to take an active role to prevent non-State actors, including enterprises or individuals, from violating other people’s right to food. The obligation to fulfil is also a positive obligation, as Governments must actively seek to identify vulnerable groups and implement policies to ensure these people’s access to adequate food and ability to feed themselves. As a last resort, direct assistance may also have to be provided where people are unable to access adequate food for reasons beyond their control.
The obligation to respect, therefore, is a negative obligation. It is little different from the negative obligations implied by civil and political rights, in the sense that it does not require extensive government resources to implement. To conclude, part of the obligations under the right to food – namely, the obligation to respect, the obligation of non-discrimination and the obligation to provide a basic minimum subsistence – should be made immediately effective, since they are not subject to progressive realization. A violation of these obligations regarding the right to food is also very clear, and a judge should be able to adjudicate these rights. Therefore, these basic obligations should be considered justiciable by their very nature.
In some cases of national legislation there are further limitations on the application of the concept of progressive realization. For example, under the Constitution of South Africa, there is a direct obligation on the State to ensure that every child and every detained person has the right to adequate food, and this is not subject to progressive realization. This is because children and detainees are considered to be unable to feed themselves (sects. 28, para. 1 (c), and 35, para. 29). These obligations are fairly precise, and in the case of prisoners clearly limited. It becomes an obligation to ensure that the right to food of prisoners is fulfilled, without regard to the limits of government resources, because they are detained at the determination of State authorities. Special protection is granted to children in order to ensure the right to food of children, if this is not guaranteed by caregivers.
Finally, the idea of progressive realization does not, of itself, necessarily mean that economic, social and cultural rights cannot be justiciable. This is the case even for the positive obligations included in the right to food: the right to protect and the right to fulfil the right to food. There is progress in constitutional jurisprudence in a number of countries that is developing the concept that both the progressive realization and the requirements of socio-economic rights can be brought to the competence of judges in a court of law.
Justiciability and enforcement mechanisms
As noted above, when the enforcement mechanism is a court of law, then the right is justiciable. At the regional and international levels, so far a victim of a violation still cannot bring a case of violation of the right to food before an international tribunal and therefore the right is not properly justiciable. However, the existing regional and international bodies do have some enforcement capacities, although these are weaker in the case of economic, social and cultural rights, than in the case of civil and political rights.
At the national level, 20 countries in the world have constitutions that more or less explicitly refer to the right to food or a related norm. These form key texts in the protection of the right to food at the national level. One of the most explicit is in the South African Constitution, which stipulates in its section 27: “Everyone has the right to have access to … sufficient food and water.” However, there are still relatively few countries which have implemented a framework law on the right to food, or broad-ranging national legislation to protect the right to food in a holistic way. Enforcement mechanisms are also weak or non-existent as a consequence of both the fact that national legislation is inadequate and the fact that economic, social and cultural rights are generally not considered to be justiciable, by their very nature. It is therefore not possible to bring a complaint before a court of law. However, there is now very visible progress being made on the justiciability of the right to food. As jurisprudence builds up, it will also become increasingly clear how the right to food can be justiciable. There are already a number of cases of national jurisprudence that show clearly that the right to food and water or other economic, social and cultural rights can be considered justiciable.
Important precedents have been set in India showing the justiciability of the right to food and the right to water. One exceptional case on the right to food was brought before the Indian Supreme Court in May 2000. The People’s Union for Civil Liberties, in collaboration with other human rights NGOs in India, brought a complaint against the Indian Ministry of Consumer Affairs and Public Distribution, the public Food Corporation of India and six Indian state governments to the Indian Supreme Court. They argued that those federal institutions and local state governments should, inter alia, bear responsibility for mass malnutrition of the people living in those states. In its first judgement, the Supreme Court sided with the NGOs and specified that its judgement related to all Indian state governments. This showed that a major problem such as malnutrition can be brought before a judge in India. The Court decision suggested that federal and local state authorities must bear responsibility for malnutrition of their populations…
At the regional level, there are three key texts which protect the right to food, directly or indirectly. On the European continent, the European Social Charter is the most important instrument. On the American continent, the Protocol of San Salvador, properly named the Additional Protocol to the American Convention of Human Rights, which came into force in the year 2000, recognizes economic, social and cultural rights, including the right to food. Finally on the African continent, the African Charter on Human and Peoples’ Rights recognizes the right to food indirectly, through the right to health.
While the enforcement mechanisms at the regional level are different for each of these three key texts, they are still weak, and the right to food is not justiciable at the regional level because none of these conventions provides for judicial bodies to adjudicate the right to food. However, there are signs of progress in the strengthening of these mechanisms, which is extremely important. The developments on the African continent are far in advance of those in both Europe and America and provide an excellent example in terms of enforcement mechanisms and hopes for justiciability.
At the international level, the key text on the right to food is clearly the International Covenant on Economic, Social and Cultural Rights. The monitoring mechanism for the implementation of the right to food is the Committee on Economic, Social and Cultural Rights. The Committee is not a judicial body and its recommendations are not legally binding. This makes the Committee weak as an enforcement mechanism. While its means and methods are very limited, the Committee does excellent work. On becoming parties to the Covenant, Governments are required to report on a regular basis on measures that have been taken to meet their obligations under the Covenant. The Committee has the role of examining these reports. It can then discuss the reports with the State representatives and make its recommendations. However, the effectiveness of the Committee is limited for several reasons. Firstly, many States do not even submit all the periodic reports. Secondly, as stated, the Committee’s recommendations are not obligatory. Thirdly, there is no complaints mechanism in force.
As, so far, there is no complaints mechanism, individuals or groups of individuals who are victims of violations cannot bring complaints to the Committee, nor obtain reparation. What is significant about this is that it makes the enforcement of the right to food, and other economic, social and cultural rights, much weaker than the current mechanisms which govern civil and political rights. Individuals can present complaints directly to the Human Rights Committee for violation of their civil and political rights if their State is party to the Optional Protocol to the International Covenant on Civil and Political Rights. But they cannot do the same for a violation of their economic, social and cultural rights. This is completely contrary to the commitments made at Vienna in 1993 relating to the equality between civil and political rights and economic, social and cultural rights.
THE RIGHT TO FOOD IN HUMANITARIAN LAW
(E/CN.4/2002/58, paras 75–77)
Prohibition of starvation of civilians as a method of warfare
The starvation of civilians as a method of warfare is prohibited in both international and non-international armed conflict. That prohibition is violated not only when denial of access to food causes death, but also when the population suffers hunger because of deprivation of food sources or supplies. The prohibition of starvation is elaborated upon in provisions prohibiting attacks against or destruction of items necessary for the survival of the civilian population, including foodstuffs and drinking water:
“Starvation of civilians as a method of combat is prohibited. It is therefore prohibited to attack, destroy, remove or render useless, for that purpose, objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works.”
Physical destruction includes the destruction of crops by chemical defoliants or the pollution of water reservoirs. Violations would also occur if landmines were to render agricultural areas useless. Under the Rome Statute of the International Criminal Court, intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival is considered a war crime in international armed conflict.
Prohibition of forced displacement
Forced displacement is prohibited under article 49 of the Fourth Geneva Convention. This article prohibits individual or mass forcible transfers of civilians in situations of occupation, except in cases of necessity for the safety of the population or for imperative military reasons. In such cases, evacuation must be effected in a way that guarantees satisfactory “nutrition”. Similar provisions are made for non-international armed conflict. Unlawful displacement constitutes a war crime under the Rome Statute of the International Criminal Court in both international and non-international armed conflict.
WATER AND THE RIGHT TO FOOD
(E/CN.4/2001/53, para. 32; E/CN.4/2003/54, paras 36, 39–42; 46–49)
It is reasonable to believe that the right to food includes not only the right to solid food, but also the right to liquid nourishment and to drinking water. Moreover, the term “food” is not defined in a restrictive sense anywhere in the texts cited (resolutions, treaties, etc.). Could it really refer only to solid food? Should “food” then also include liquid or semi-liquid nourishment and so on? The question is absurd anyway. It is obvious that the right to food must include the consubstantial right to drinking water.
General Comment No. 15 on the right to water
[A] new and very important development occurring at the international level has been a new breakthrough in the legal protection of the right to water. This is the development of a new General Comment No. 15 on the right to water, which will greatly improve the legal framework protecting the right to water by providing the authoritative legal interpretation of the Committee on Economic, Social and Cultural Rights. The Special Rapporteur believes that he has the responsibility to raise awareness of this new development, as water forms part of his mandate on the right to food. The Commission on Human Rights extended the mandate of the Special Rapporteur on the right to food to cover the issue of drinking water: “to pay attention to the issue of drinking water, taking into account the interdependence of this issue and the right to food”.
The Special Rapporteur welcomes the initiative of the Committee on Economic, Social and Cultural Rights to establish a new General Comment on the right to water. This General Comment adds a contribution to the interpretation of the legal protection of the right to water, which is already recognized in international human rights law, and also in international humanitarian law and international watercourses law (the law governing the sharing of water between countries). The General Comment clarifies that: “The human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses.” [para. 2]
It also clarifies that the right to water does not mean that free water should be given to everyone. Rather, it implies the obligations to respect, protect and fulfil the right to water. These are defined in the new General Comment as follows: the obligation to respect requires that States parties refrain from interfering, directly or indirectly, with the enjoyment of the right to water. The obligation to protect requires States parties to prevent third parties from interfering in any way with the enjoyment of the right to water. The obligation to fulfil is disaggregated into the obligations to facilitate, promote and provide. The obligation to facilitate requires the State to take positive measures to assist individuals and communities to enjoy the right. The obligation to promote obliges the State party to take steps to ensure that there is appropriate education concerning the hygienic use of water, protection of water sources and methods to minimize water wastage. States parties are also obliged to fulfil (provide) the right when individuals or a group are unable, for reasons beyond their control, to realize that right themselves by the means at their disposal. The General Comment also goes further to define in greater detail what these obligations to respect, protect and fulfil the right to water mean in practice [paras 20–29].
The General Comment highlights that water is essential for life and emphasizes the fundamental importance of access to “sufficient, safe, and acceptable” drinking water. In recognizing the importance of drinking water to nutrition, the General Comment also highlights how the right to water is inextricably related to the right to food and requires that: “Priority should … be given the water resources required to prevent starvation and disease.” [para. 6]
The Special Rapporteur welcomes the fact that the Committee has recognized that access to water for the irrigation of food crops must form a key part of the right to food, particularly for subsistence farming and vulnerable peoples. As I. Serageldin, formerly of the World Bank, has argued “In the near future, availability of water rather than land will be the main constraint to agricultural production in many areas.” The General Comment reads:
“The Committee notes the importance of ensuring sustainable access to water resources for agriculture to realize the right to adequate food (see General Comment No. 12). Attention should be given to ensuring that disadvantaged and marginalized farmers, including women farmers, have equitable access to water and water management systems, including sustainable rain harvesting and irrigation technology. Taking note of the duty in article 1 (2) of the Covenant, which provides that a ‘people may not be deprived of its means of subsistence’, States parties should ensure that there is adequate access to water for subsistence farming and for securing the livelihoods of indigenous peoples.” [para. 7]
Linkages between the right to water and the right to food: concrete examples—Bangladesh
Bangladesh is an extremely fertile country located on the vast alluvial delta at the meeting point of the three greatest rivers of Asia. Its 144,000 km are home to 134 million people, more than 47 million (35 per cent) of whom are undernourished. Food insecurity and malnutrition in Bangladesh are largely due to poverty and lack of access to resources. However, food security is improving, as, given the energetic efforts of government authorities, Bangladesh has become self-sufficient in food (cereal) production since 1996. Considerable progress has also been made in improving access to water across Bangladesh, thanks to the efforts of the Government, United Nations agencies and civil society. Millions of small-scale tubewells have been sunk in Bangladeshi villages which have provided access to water for many millions of people, for both drinking water and irrigation. This has brought with it some great advances: using drinking water from groundwater, rather than surface ponds, has radically reduced the prevalence of waterborne disease, including diarrhoea, which was one of the major causes of premature death, especially of small children and babies. Increased availability of water for irrigation purposes has improved food security by enabling agriculture outside of the rainy season and significantly improving productivity.
However, at the same time, a tragic new problem has arisen. Unforeseen in the development of tubewells was the terrible problem of arsenic contamination of the groundwater. The water of many of Bangladesh’s village tubewells has been examined and identified as being contaminated by arsenic. Thousands of people have begun to suffer the effects of arsenic poisoning, which is a dreadful, hidden disease that poisons the body over 5-10 years, eventually destroying internal bodily organs and evolving into cancer. The arsenic is believed to be naturally occurring in rock, washed down in the great rivers from the Himalayas and other watersheds into the flat delta which is Bangladesh, and the concentration of arsenic is high compared to other regions. Although responsibility for this tragedy is difficult to establish because the risks were unknown before, the key requirement now is to take urgent action to mitigate the effects. This must include, as an initial and immediate measure, reducing the dependence on groundwater used for drinking water by, for example, building small family cisterns that collect rainwater for drinking. Taking remedial action will be possible, given that Bangladesh enjoys high rainfall and has abundant access to surface water, however, it will require immediate and strong political will on the part of the Government. The Government of Bangladesh is fully aware of this problem and, in partnership with other actors, is taking decisive and strong action.