10 Right to Food Under International Law

Prof. Rehan Abeyratne

epgp books

 

 

Introduction

The right to food is a human right that is classified as an economic and social right. It is protected in the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) under Article 11 as a constituent part of the right to an adequate standard living. The Right to Food has since become a discrete human right in itself that includes both a “negative” component (the right to obtain food by one’s own efforts without interference) and a “positive” one (the right to be supplied with food if one is unable to produce, purchase or access it).

This chapter will introduce students to the history of the right to food, the various international instruments that protect this right, and the other significant international materials that supplement these instruments.

Learning Outcomes:

After completing this chapter, students should know and understand:

  • The origins of the Right to Food.
  • Binding international legal instruments on the Right to Food.
  • Non-binding declarations and other significant international materials on the Right to Food.

1. Origins of the Right to Food

The right to food has deep historical roots. It was recognized as early as 1215 in England’s Magna Carta, which states “no one shall be ‘amerced’ (fined) to the extent that they are deprived of their means of living.” In the twentieth century, prominent world figures declared the importance of the right to food, if not exactly in those terms. The right to food has been variously conceived as part of a right to basic subsistence, freedom from want, and freedom from hunger.

U.S. President Franklin Roosevelt was one of the first proponents of this “freedom of want.” Roosevelt became President in 1932 when the United States was in the midst of the Great Depression – the worst economic crisis in its history. The U.S. Constitution protects various civil and political rights through its Bill of Rights, including the right to free speech, but provides no protection of socio-economic rights. For Roosevelt, this called for a “Second Bill of Rights” – one that would supplement the original Bill of Rights to provide more comprehensive fundamental rights protection for American citizens. In a famous speech in 1941, Roosevelt presented his vision to the country, outlining “Four Freedoms” that every state ought to protect. These included the freedom of speech and expression, the freedom of religion, the freedom from want, and the freedom from fear. Roosevelt’s fundamental insight – which now forms the basis of international human rights law – is that all these freedoms are interdependent and mutually reinforcing. With the United States coming out of the Great Depression and entering World War II, Roosevelt declared that to ensure national “security” in the broadest sense, all these freedoms must be protected.

A few years later, Indian independence leader and future Prime Minister Jawaharlal Nehru, made a similar appeal to his country. Addressing the Constituent Assembly that was formed to draft the Constitution of an independent India, Nehru set forth his vision for the future of India. He said, “The first task of this Assembly is to free India through a new constitution, to feed the starving people, and to clothe the naked masses, and to give every Indian the fullest opportunity to develop himself according to his capacity.” This vision was embodied in the Constitution of India. Part IV of the Constitution (Directive Principles of State Policy) places great emphasis on socioeconomic justice, including securing adequate means of livelihood and improved nutritional standards. Article 47, for instance, directs the state to raise “the level of nutrition and the standard of living of its people.” While the Directive Principles were not intended to be enforced in court, the Supreme Court held in PUCL v. Union India (2001) that the right to food is protected as a fundamental right as part of the right to life (right to live with dignity) in Article 21 of the Constitution. Recently, the Indian Parliament followed the Court’s lead by enacting the National Food Security Act (2013), which seeks to ensure “food and nutritional security, in human life cycle approach, by ensuring access to adequate quantity of quality food at affordable prices to people to live a life with dignity.”

In 1948, through the Universal Declaration of Human Rights (UDHR) the international community for the first time accepted a right to food as part of a broader scheme of indivisible and interdependent human rights. Article 25 of the UDHR provides, “Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food.” Although the UDHR was not intended to be a binding international legal instrument, it acted as a significant reference point for human rights treaties and legislation within individual states.

The primary international legal instrument that protects the right to food is The International Covenant on Economic, Social, and Cultural Rights. The ICESCR opened for signatures in 1966 and came into force in 1976. It currently has 162 state parties. This is a large majority of the world’s nation-states but notably does not include the United States, which signed the Covenant in 1977 though has never ratified it. Article 11 (1) of the ICESCR provides that state parties recognize “the right of everyone to an adequate standard of living for himself and his family, including adequate food.” Article 11(2) declares “the fundamental right of everyone to be free from hunger.”

The right to food is also protected by a range of other multilateral treaties. Article 12(2) of the Convention on the Elimination of All Forms of Discrimination Against Women (1979) obligates state parties to ensure that women obtain adequate nutrition during pregnancy and lactation. Article 24(2)(c) of the Convention on the Rights of the Child (1989) provides that every child has the right to adequate nutritious food, clean drinking water, and primary health care. Article 27(3) requires state parties to provide material assistance and support programmes to parents and others responsible for providing nutrition, clothing, and housing to children. Article 28(1) of the Convention on the Rights of Persons with Disabilities (2006) recognizes the right of persons with disabilities to an adequate standard of living for themselves and for their families, which includes adequate food, clothing, and housing. It also declares that state parties should strive towards safeguarding and promoting the realization of this right without discrimination on the basis of disability.

What is the nature of state obligations under the ICESCR and other binding multilateral treaties? At the core, the right to food is a human right that protects the right of individuals to feed themselves in dignity. To have the right to food implies that sufficient food is available, that people have the means to access it, and that it adequately meets each individual’s dietary needs. The right to food also protects the right of all human beings to be free from hunger, food insecurity and malnutrition. This right has two components. First, the right to food includes a “negative” component to obtain food by one’s own actions without interference from the state or other individuals or groups. Second, it contains a “positive” component in which the state must supply food to those unable to produce, purchase or access adequate food themselves. It is important to note that the right to food does not simply require states to provide a certain quantity of food to its citizens to combat hunger; states must also ensure that proper health and nutritional standards are maintained.

The most comprehensive summary of state obligations under international law can be found in General Comment 12 of the UN Committee on Economic, Social and Cultural Rights. It describes the concept of the right to food as follows:

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 Committee considers that the core content of the right to adequate food implies:

  • The availability of food in quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture;
  • The accessibility of such food in ways that are sustainable and that do not interfere with the enjoyment of other human rights.

General Comment 12 also explains the five components of the right to food. They are:

Availability: Refers to the possibilities either for feeding oneself directly from or productive land or other natural resources, for well-functioning distribution, food processing and market systems that can move from the site of production to where it is needed in response to demand.

Stability: It is necessary to have a stable food supply; food availability should be stable over time at all places.

Accessibility: All people should have access, both economic and physical, to sufficient amounts of adequate food. This implies that the 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 compromised.

Sustainability: Natural resources must be managed in such a way that they ensure the availability of sufficient amounts of food for both present and future generations.

Adequacy: Food must be available in sufficient quantity to meet the nutritional needs of individuals, be free from adverse substances, and be acceptable for the culture of the group to which each person belongs.

Thus, the right to food contains within it several distinct obligations for states to fulfill. However, it is important to note that, as with all economic, social and cultural rights, the right to food need not be immediately realized by every state. Article 2 of the ICESCR makes clear that all the rights in the Covenant are subject to differences in resources and capacity among state parties. State parties must therefore only “undertake to take steps” towards “achieving progressively the full realization” of the rights set forth in the Covenant.

With regard to enforcement, the ICESCR requires states to report periodically to the Economic and Social Council and the Committee on Economic, Social and Cultural Rights on their progress in implementing the rights in the Covenant, including the right to food under Article 11. The current procedure mandates that states submit reports every five years according to detailed guidelines set forth by the Committee.

This mechanism has some obvious drawbacks. First, by allowing states to report on themselves, it leaves open the possibility that states could exaggerate their progress and to obfuscate their setbacks in implementing the right to food. Second, there was no mechanism for individuals to report violations of their state’s obligations under the ICESCR. This has been remedied recently through the Optional Protocol to the ICESCR, which came into force on 5 May 2013. The Protocol allows the Committee on Economic, Social and Cultural Rights to hear individual complaints, but thus far has only been ratified by 15 states.

III. Other International Sources on the Right to Food

Non-binding international sources that set forth guidelines and principles on the right to food have contributed significantly to its recognition and enforcement as a fundamental human right. Some of the most important sources include:

Constitution of the Food and Agricultural Organization, 1965: The Preamble to the Constitution of the FAO states that “The Nations accepting this Constitution, being determined to promote the common welfare by furthering separate and collective action on their part for the purpose of raising levels of nutrition and standards of living… and thus…

ensuring humanity’s freedom from hunger.”

Universal Declaration on the Eradication of Hunger and Malnutrition (1974): The UN General Assembly adopted the Universal Declaration on the Eradication of Hunger and Malnutrition (the Declaration) in 1974 to develop ways for the international community to take specific action to resolve the world’s food shortages in a manner that supports development and international economic cooperation.

Article 2 of the Declaration makes the equitable and efficient food distribution both between and within countries a fundamental responsibility of state governments. It also directs the state governments to formulate appropriate food and nutrition policies and to integrate them into agricultural development plans. Article 12 states that availability of basic foodstuffs at all times is the common responsibility of the international community and all countries should cooperate in the establishment of an effective system of world food security.

Rome Declaration on World Food Security (1996): Objective of the Rome Declaration of the World Food Summit states its objectives as follows: “To clarify the content of the right to adequate food and the fundamental right of everyone to be free from hunger, as stated in the International Covenant on Economic, Social and Cultural Rights and other relevant international and regional instruments, and to give particular attention to implementation and full and progressive realization of this right as a means of achieving food security for all. To this end, governments, in partnership with all actors of civil society, will, as appropriate:

  1. Make every effort to implement the provisions of Article 11 of the International Covenant on Economic, Social and Cultural Rights (the Covenant) and relevant provisions of other international and regional instruments;
  2. Urge States that are not yet Parties to the Covenant to adhere to the Covenant at the earliest possible time;
  3. Invite the Committee on Economic, Social and Cultural Rights to give particular attention to this Plan of Action in the framework of its activities and to continue to monitor the implementation of the specific measures provided for in Article 11 of the Covenant;
  4. Invite relevant treaty bodies and appropriate specialized agencies of the UN to consider how they might contribute, within the framework of the coordinated follow-up by the UN system to the major international UN conferences and summits, including the World Conference on Human Rights, Vienna 1993, within the scope of their mandates, to the further implementation of this right;
  5. Invite the UN High Commissioner for Human Rights, in consultation with relevant treaty bodies, and in collaboration with relevant specialized agencies and programmes of the UN system and appropriate intergovernmental mechanisms, to better define the rights related to food in Article 11 of the Covenant and to propose ways to implement and realize these rights as a means of achieving the commitments and objectives of the World Food Summit, taking into account the possibility of formulating voluntary guidelines for food security for all.

4. Millennium Development Goals (2000): The UN General Assembly adopted the UN Millennium Declaration (the UN Millennium Declaration) at the Millennium Summit which took place from 6 to 8 September 2000. This was the largest gathering of world leaders in recorded history. The UN Millennium Declaration led to the Millennium Development Goals (the MDGs). The MDGs prioritize human development over economic and industrial development. They direct developing countries to strive towards the MDGs and impose obligations on developed countries to transfer technology and provide assistance measures to help developing countries.

The eight goals that are to be achieved by 2015 are:

  1. Eradicate extreme poverty or hunger;
  2. Achieve universal primary education;
  3. Promote gender equality and empower women;
  4. Reduce child mortality;
  5. Improve maternal health;
  6. Combat HIV/AIDS, malaria and tuberculosis;
  7. Ensure environmental sustainability;
  8. Develop a global partnership for development.

The first of these goals, eradicating extreme poverty and hunger, clearly implicates the right to food. It requires participating countries from 1990 to 2015 to halve the number of their citizens suffering from extreme poverty and hunger. The indicators aimed at eliminating hunger are (1) the prevalence of underweight children under five years of age; and, (2) the proportion of the population below the minimum level of dietary energy consumption.

Summary

The right to food is an economic and social right that has deep historical roots. First recognized in the Magna Carta, the importance of the right to food was declared in various forms by prominent world leaders, including U.S. President Franklin Roosevelt and Indian Prime Minister Jawaharlal Nehru. It has since gained recognition and protection as a fundamental human right. It was first recognized as part of an indivisible and interdependent scheme of human rights by the UDHR in 1948.

The ICESCR (1966) required states to undertake to respect, protect, and fulfill the right to food as part of a broader right to an adequate standard of living in Article 11. It is supplemented by a range of other human rights treaties including the Convention on the Elimination of All Forms of Discrimination Against Women (1979), the Convention on the Rights of the Child (1989), and the Convention on the Rights of Persons with Disabilities (2006). The most comprehensive statement on states’ international obligations with respect to the right to food is contained in General Comment 12 of the Committee on Economic, Social and Cultural Rights.

The ICESCR includes a self-reporting mechanism in which states must report their progress in realizing the right to food, among other rights, every 5 years. The Optional Protocol to the ICESCR, adopted last year, supplements this mechanism by allowing individuals to file complaints against state parties. However, only 15 states have ratified the Protocol, so it does not apply to most state parties to the ICESCR.

Nonetheless, the right to food is widely recognized today as a fundamental human right. This is due not only to the various binding international instruments but to non-binding sources that promote guidelines and principles to provide greater recognition and enforcement of the right to food. These sources include the 1996 Rome Declaration on World Food Security and the Millennium Development Goals.

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Reference

 

  • Food and Agricultural Organization of the United Nations, World Food Summit Five Years Later: What is the Right to Food, available at: http://www.fao.org/worldfoodsummit/english/newsroom/focus/focus6.htm.
  • Cass Sunstein, The Second Bill of Rights (New York: Basic Books, 2004), p. 12-14. See Module 8 for more information on Roosevelt and the Second Bill.
  • The “State of the Union” Address, 26 January 1941, Roosevelt F.D. “War—And Aid to Democracies,” in Rosenman S. I., The Public Papers and Addresses of Franklin Roosevelt, (New York: MacMillan Company, 1941). 
  • National Food Security Act, No. 20 of 2013, India Code (2013), available at http://indiacode.nic.in/acts-in-pdf/202013.pdf.
  • United Nations Treaty Collection: International Covenant on Economic, Social and Cultural Rights, available at: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en – EndDec.
  • Food and Agricultural Organisation, The right to food within the international framework of human rights and Country constitutions, United Nations (2014). available at: http://www.fao.org/3/a-i3448e.pdf.
  • Food and Agricultural Organization of the United Nations, The Human Right to Adequate Food: Questions and Answers, available at: http://www.fao.org/righttofood/faqs/en/.
  • Food and Agricultural Organization of the United Nations, World Food Summit Five Years Later: What is the Right to Food, available at: http://www.fao.org/worldfoodsummit/english/newsroom/focus/focus6.htm.
  • UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 12: The Right to Adequate Food (Art. 11 of the Covenant), 12 May 1999, available at: http://www.refworld.org/docid/4538838c11.html.
  • United Nations Treaty Collection: Optional Protocol to International Covenant on Economic, Social and Cultural Rights, available at: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3-a&chapter=4&lang=en.
  • Food and Agriculture Organization, Constitution of the food and agriculture organization of the united nations, FAO Document Repository, available at: http://www.fao.org/docrep/x5584e/x5584e0i.htm
  • Office of the High Commissioner for Human Rights, Universal Declaration on the Eradication of Hunger and Malnutrition, United Nations Human Rights, available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/EradicationOfHungerAndMalnutrition.aspx
  • Food and Agriculture Organization, World Food Summit: Rome Declaration on World Food Security and Plan of Action, FAO Document Repository, available at: http://www.fao.org/docrep/003/w3613e/w3613e00.HTM
  • United Nations Development Programme, The Millennium Development Goals, available at: http://www.undp.org/content/undp/en/home/mdgoverview.html.
  • United Nations Development Group, Indicators for Monitoring the Millennium Development Goals (2003), available at http://www.undp.or.id/mdg/documents/MDG%20Indicators-UNDG.pdf.