MODULE 12

The Right to Adequate Food
USING MODULE 12 IN A TRAINING PROGRAM

Purpose of Module 12

The purpose of this module is to provide an overview of the right to food.

The module

• Identifies international standards related to the right to food;
• Discusses the right to adequate food;
• Analyses the relationship of the right to food to other rights;
• Considers  states’ obligations under international and national law; and
• Addresses implementation and enforcement mechanisms.

Introduction

Hungry? If you were born in the right part of the world and into the right social class, the solution to your problem is no farther away than the nearest refrigerator.  If you weren't, then you may go hungry all your short life, as 800 million people do, who were born in the wrong place and into the wrong social class. 

Lots of people, frankly, are tired of hearing about them and their problems, which seem eternal and inevitable.  Not So.

The reasons people go hungry are not mysterious.  Mass starvation is not an act of God.  Hunger is created and maintained by human decisions. 1 

Historical and Political Background

The historical and political background of the right to food is much more than the history and politics of malnutrition.  It concerns the development of the notion of access to food as a right. As a right it sets obligations on the state and community of states.  These obligations have been established as "enforceable" through centuries of social struggle for a democratic state in the service of the people.  Providing access to food and work has been seen as a moral obligation for rulers from the dawn of history.  The only (but decisive) difference be­tween these moral obligations and the right to food is, of course, the fact that human rights give a claim to the poor and vulnerable groups that is, in principle, enforceable.  Traditionally people had no remedy other than revolt against a king or state that failed to meet its obliga­tions.  The idea of the human right to food is to establish procedural and legal means for seeking remedies against authorities when they fail to guarantee access to food.  This idea is barely 200 years old-and not yet legally implemented in most states even today.

In situations of scarcity, even the best state in the world cannot guarantee that people do not go hungry.  Research into historical famines of the last 100 years has shown, however, that most of these famines did not originate from lack of availability of food.  They were due to lack of access to food by the victims, as a result of poverty or (other) political dis­order.

Current Context

Estimates indicate that more than 840 million people throughout the world are chronically undernourished-in spite of a record availability of food per capita in most countries and globally.  Nearly 40,000 children die due to malnutrition and its diseases every day.  It is the poor (both in the North and in the South) who are the victims.  The poor are deprived of their resources while the rich monopolize them for their luxury needs.  People (both in the North and the South) are displaced from their lands, forests, pastures, fishing grounds.  Billions of people are excluded from secure participation in the economic life of their respective countries and glob­ally-and hence from food security.

Lack of access to food can be due to two reasons: There is no food available, or food is available, but cannot be accessed by the deprived persons.  In the past, al­most exclusive emphasis has been put on the overall availability of food.  Guaran­teeing the right to food has therefore often been seen as being mainly linked to food production to overcome scarcity.  Such an emphasis, however, is only correct in so far as it deals with the production of food by the poor for themselves.  Often the poor lack access to food as a result of their marginal resource base.  The yield per hectare on the fields of the rich and the overall avail­ability of food is irrelevant for them, if they are too poor to buy this surplus.  Another issue is whether the accessed food is adequate in terms of a number of variables, such as nutritional quality, quantity and cultural accept­ability.

There is no doubt among the experts that adequate food is available (or could be produced with current resources) not only on a global scale, but also in almost every country-even in those known for persistent malnutrition.  Many of the so-called poor countries produce more than enough food not only for their internal markets, but even for export, with hunger and malnutrition nonetheless persisting in the country.  In a market economy, people who are too poor to exercise effective demand will not have food (unless they produce food for them­selves, or receive food through transfers).  Hunger and malnutrition today are not about avail­ability of food, but are a matter of rights and entitlements.

Legally Guaranteed Access to Food for the Poor-Critical Voices

Some people maintain that the obligation of states to provide access to food exists only to­wards the "deserving poor"-those who lack access to food for reasons beyond their control.  The tendency is to blame the poor and vulnerable groups for their impoverished status.

Fears that a state feeding part of its population would eventually face economic ruin have little to do with the human right to food.  The fact that there is a legal guarantee to certain goods in case of basic need does not mean that people deliberately fall in need and that such goods are then generally obtained by invoking this guarantee (thus leading to a state feeding its people). There are many reasons why people would not make use of this guarantee-the simplest reason being that they prefer not to fall into deprivation.  Experience shows that people who are given a real choice (by providing them access to resources, technologies and work with dignity) prefer to use these opportunities to feed themselves.

There is another critique of the human right to food (and similar economic and social rights).  In this argument, a state strong enough to legally guarantee access to food would necessarily undermine civil and political rights.  Usually this critique points to the experience in the So­viet Union and other socialist countries.  It is wrong, however, on both counts.  The Soviet Union did not provide a legal guarantee for economic and social rights, nor do states implementing economic and social human rights have to do so at the expense of civil and political rights.  Quite the contrary: Only on the basis of economic and social rights can political and civil rights flourish without discrimi­nation and vice versa.  This is one of the aspects of the indi­visibility of human rights-and has been aptly pointed out by the international community.

The Right to Food as a Human Right

Given the crucial importance of access to food in a world of plenty where massive hunger persists, it may not come as a surprise that the right to food has been playing a pioneering role in the resurgence of economic and social rights during the past fifteen years.  The right to food was the first of the ESC rights to be studied by the UN human rights system.

In 1987 a report titled The Right to Food as a Human Right became the starting point for a series of investigations into the rights contained in the ICESCR.  The crucial role of the right to food was reconfirmed almost ten years later when the 1996 World Food Summit requested the High Commissioner for Human Rights to define its legal content.  Another consequence of the World Food Summit was the "Draft Code of Conduct on the Right to Adequate Food."  This document was an outcome of action taken by FIAN (the international human rights or­ganization on the right to feed oneself), WANAHR (the World Alliance for Food and Nutri­tion) and the Instituto Jacques Maritain.  The Draft Code’s article 4 is considered to provide the current definition of the right to food.  It states:

The right to adequate food means that every man, woman and child alone and in community with others must have physical and economic access at all times to ade­quate food using a resource base appropriate for its procurement in ways consis­tent with human dignity.  The right to adequate food is a distinct part of the right to an adequate standard of living.

The right to food is enshrined in several international human rights and other treaties.  They are:

1.      The International Covenant on Economic, Social and Cultural Rights

Article 11(1) states clearly that the "right to an adequate standard of living includes food, housing, clothing." Moreover, article 11(2) recognizes the "fundamental right of every­one to be free from hunger."

2.      Convention on the Rights of the Child

Article 24(2)(c) obligates states parties "to combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of read­ily available technology and through the provision of adequate nutritious food and clean drinking water, taking into consideration the dangers and risks of environmental pollu­tion."

3.   The Additional Protocol to the Geneva Conventions, and Relating to the Protection of Victims of International and Non-International Armed Conflicts

The Additional Protocol to the Geneva Conventions, and Relating to the Protection of Victims of International and Non-International Armed Conflicts declares in article 54(1) that starvation of civilians as a method of warfare is prohibited.  Article 54(2) prohibits attack, destruction, removal or rendering useless objects indispensable to the survival of the civilian population, such as foodstuffs, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or any other motive.

Elements of Right to Food-Right to Adequate Food

Access to adequate food is funda­mental for the right to adequate food.  Accessed food must be ade­quate in terms of quality and quantity.  Access to adequate food has been defined in terms of intake of nutrients, calories and proteins.  Hunger and malnutrition are the consequences of lacking access to adequate food.  The consequences of food deprivation can be diag­nosed with considerable medical precision.  Malnutrition need not be undernutrition (lacking quantity of food in­take), but could also be due to lack of quality food.  Both are often the results of poverty and discrimi­nation, in particular gender-based discrimination.

Precise indicators for food intake and malnutrition are less important for the description of the right to food than might be expected.  A breach of a state’s obligations can normally be detected without counting calorie intake or having the victimized person go through a medi­cal examination.

Adequate food may also refer to socioeconomic and cultural circumstances.  Similar to an adequate standard of living, adequate food means different things under different cultural cir­cumstances.  Nevertheless, there is a minimum standard universal under all (cultural and other) circumstances.  This minimum has even been spelled out in article 11(2) of ICESCR as the fundamental right to freedom from hunger.

There are definitions for hunger and malnutrition in terms of intake of nutrients.  It is possi­ble to establish minimum dietary requirements as well as a minimum income necessary to prevent hunger and malnutrition and deprivations of other basic needs for deprived groups.  This has often been called the "absolute poverty line" or "basic needs line," whereas the in­come necessary for an adequate standard of living according to article 11(1) is called the "relative poverty line."

Absence of absolute poverty can be seen as the minimum standard under the right to an ade­quate standard of living.  In terms of income the relative poverty line is normally defined as a percentage of average per capita income in the country.  Most social scientists would agree that anything below 40 percent of per capita income is generally seen as relative deprivation.  Therefore the 40 percent mark would be called the "relative poverty line" or "adequacy line."

Right to Food and Interdependency of Rights

The right to adequate food provides an example of the interdependency of human rights.  There are many aspects to this right that demonstrate strong links with other human rights.  The human right to food is part of the right to an adequate standard of living.  An adequate standard of living is either a result of a transfer or seen as something earned in return for eco­nomic activities, like wage labor, self-employment, providing goods, services or means of production.  A living is earned or transferred, and quite often it is both.  The right to an ade­quate standard of living can therefore be seen to be implemented through social welfare transfers, through the right to earn one’s living or through the right to social security.

The right to work (See Module 10)

For many of the most vulnerable groups, the right to food poses itself not so much as a question of the right to social welfare payments, as these systems have not yet been fully put in place.  Under such circumstances addressing the right to food means first of all ad­dressing the family’s and community’s right to feed themselves.  This means access for the family or community to productive resources and work.  Most people realize their right to food by realizing their right to work. 

The right to social security (see Module11 )

The right to social secu­rity when seen in a very narrow sense includes the security of ac­cess to food for persons unable to participate in economic life, where they would other­wise earn their living.  Social secu­rity, however, must not be identified with wel­fare state measures.  So­cial security is a univer­sal concept going far be­yond social insurance, which is a method of implementing the right to social security.  In many societies social se­curity is provided through the extended family or other means.  Already in article 25 of the Universal Declaration of Human Rights the right to (social) security is seen as a means to address the lack of livelihood under specific circumstances as described above, and it is attached to the right to an adequate standard of living that in­troduces the same article.  We can therefore say that the right to social security imple­ments the right to an adequate standard of living under circumstances where persons do not earn their living.

The right to an adequate standard of living complements the traditional concept of social security, which makes these services depend on "circumstances beyond his control."  In order to receive traditional social security benefits, there are quite often specific tests of eligibility.  The right to an adequate standard of living, however, introduces state meas­ures (like social welfare) that must be available on the sole basis that a person’s other income is insufficient to provide for an adequate standard of living, and in particular food.

The right to health (see Module 14)

      The right to food is closely linked to the right to health.  This is obvious for the question of undernutrition, which is the ultimate cause of a very large number of health-related deaths in the Southern hemisphere.  Studies in the Northern hemisphere reveal that poor people’s diet is less healthy than that of rich people.  In addition, the effects of agricul­tural production techniques promoted by agribusiness threaten everybody’s health-rich and poor.  Access to food that is really adequate in terms of health has become a problem for many Northerners.

      Both the health risks and lack of sustainability of current agricultural practices shed new light on article 11(2) of the Covenant related to reform of agrarian systems.  The same is true when it comes to the right to work in agriculture-or in rural areas in general.

Women’s Right to Food (see Module 4)

Food is largely a women’s issue.  In most families it is women who prepare the meals and who work in the fields.  At the same time, it is often they who eat last and eat only what is left over.  Women own about 1 percent of the agricultural land in the world, although they work perhaps more than 50 percent of the land. 

Women’s minimum wage is generally lower than men’s minimum wage for the same work.  Thus, work that may feed a man may not feed a woman.  Women’s weaker economic posi­tion makes women usually more vulnerable to hunger and malnutrition.  The extra strains of pregnancy and child rearing also put an extra risk on women’s food security. 

Inheritance laws that exclude the wife or girl child can put her in a weak position, threatening her food security once her husband or father has died.  Family structures in many places put the food security of women into the hands of their husbands, brothers, or other males.  These situations need special attention by every state and the community of states.  They need to be addressed and remedied through education and legislation.

Many measures of economic security policies or employment programs themselves overlook women and their food needs.  Women continue to suffer discrimination in the implementa­tion of many of the states’ obligations described in the next section.  Women’s rights have in many situations a great bearing on their right to food.

A Community’s Right to Feed Itself

Food cannot be separated from how it is produced, how it is acquired and how it is eaten.  These are fundamental aspects of the culture and values of a community and of its identity.  Adequate food is more than a package of calories and nutrients, and more than just a com­modity.  Adequate food is culture.  Cultural and minority rights related to food have to be respected, protected and fulfilled.  In most cases this requires a community to feed itself.  This is obvious for indigenous people.  However, a general indicator of societies offering a high quality of life is that they value food as part of their culture and feed themselves.  (See Module 17 for more on cultural rights.)

In most situations of severe hunger and malnutrition, people lack access to food because their community lacks access to food.  The right to feed oneself frequently primarily affects a community rather than an individual.  Within such an affected community it may be women and girls who suffer most from deprivation of food.  Under many circumstances it is there­fore necessary to see the right to food, and in particular the right to feed oneself, as a right of communities (derived, of course, from the individual’s right to food) rather than primarily as a right of individuals.

Agrarian Reform

For a considerable number of countries, hardly any serious expert believes that these coun­tries will be able to implement the right to feed oneself for the rural masses in the foreseeable future without agrarian reform.  Evading agrarian reform measures under such circumstances violates the right to feed oneself.  Such evasion may take different forms.  Obviously, the crudest form is the simple absence of agrarian reform legislation or agrarian reform pro­grams.  The most common form, however, is that of deficient agrarian reform programs/laws with loopholes that prevent the distribution of land to landless peasants.  Agrarian reform that meets the obligation to fulfill access to adequate food may require more than merely the dis­tribution of productive resources (land, water, technology, etc.).

States’ Obligations

The following states’ obligations have been clarified in recent years in the context of the ICESCR.

The generic states’ obligations under the right to food are the obligations to respect, protect and fulfill each person’s access to food.  A breach of a state’s obligations leads to the de­struction of a person’s access to food or keeps a person in a situation of food deprivation.

The "respect-bound obligations" impose a duty on states not to destroy access to food.  These respect-bound obligations are unconditional in the sense that the state can always be expected to stop destroying people’s access to food.  Since even the poorest state can do so, these obli­ga­tions are imperative.

The "protection-bound obligations" make a state duty-bound to protect a person’s access to food against destruction by a third party-his or her neighbors, employers or business enter­prises.  Whereas the respect-bound obligations are fairly straightforward, protection-bound obligations can become fairly complicated.  What kind of protection can reasonably be ex­pected from a state?

The "fulfillment-bound obligations" refer to the state’s duty to fulfill access to food for those in need.  It means, in particular, the state’s obligation to provide food for each person threat­ened by hunger and malnutrition.  What it does not mean is a general state obligation to pro­vide food.  To fulfill means nothing more and nothing less than to ensure that people over­come their deprivation.

The obligations to protect and fulfill access to adequate food must be seen in relation to the proviso of "maximum use of available resources," as this may imply state infrastructure and resources.  In almost all countries and at the level of the international community of states, there is no general lack of food or resources to fulfill access to food for all.  Lack of food is rather a problem of poverty and lacking access to productive resources and work.

Principle of Nondiscrimination and Sustainability

The principle of nondiscrimination is particularly important for the right to food.  The state’s obligations mentioned must be implemented and enforced without discrimination, for exam­ple, on the basis of gender or generation.  Nondiscrimination on the basis of generation has to include the children, and the aged as well as future generations.  As far as children and future generations are concerned, the principle of nondiscrimination calls for sustainability of ac­cess to food.  This includes concerns about future food production, as many current agricul­tural production practices are not sustainable.  The human rights principle of sustainability entails an obligation of the community of states to address these questions here and now.  Present agricultural and other economic practices, which bank on the food resources of future generations, need to be stopped as a matter of human rights.

National Legal Recognition

The right to food is usually recognized as part of the right to an adequate standard of living.  This is implicit (and often explicit) in the provisions relating to social security, minimum in­come, agrarian reform or minimum wage legislation, which tend to refer to basic needs, in­cluding food.

The constitutional law of most democratic countries acknowledges that the state has to give a guarantee to secure adequate living conditions for everybody.  When it comes to the role of the right to an adequate standard of living and the right to food in domestic jurisprudence, the picture changes somewhat.  True, for certain elements of the right to food, there does exist considerable jurisprudence.  When it comes to legally guaranteed access to food for the poor, however, the situation is less convincing.  In many countries there are social se­curity provi­sions that provide a lump sum payment, which should make sure that everybody has access to adequate food.  This does not, however, normally entail a legal guarantee to be free from hunger.

Implementation and Enforcement Mechanisms

Implementation (or enforcement) of the right to food does not mean to promote that people somehow get food.  It means more than that.  It means for the state to establish mechanisms for carrying out its obligations (if necessary by using its power of sanction).  It goes without saying that enforcement will be the result not of a benevolent state but of struggle by the people and political movements.  The importance of making political use of the human right to food by each and every one can hardly be overrated.  Widespread and simple reference to this straightforward human right will be the best way to promote it.  However, this does not change the formal truth that it is the state or community of states who, in the end, have to provide such mechanisms.

Implementation and enforcement mechanisms for the human right to food are not just any mechanisms that respect, protect and fulfill people’s access to food.  For example, it is not a question of merely having any food policy regimes, agrarian reform, employment guarantee schemes, minimum wages laws, welfare programs and social legislation, consumer protec­tion, criminal codes, etc.  These may facilitate enjoyment of the right to food and are part of states’ obligations.  What is fundamental is the concept of guaranteed remedy.  Human rights are legal in nature, even if they are not implemented in positive law.

With regard to international procedures, international law provides for states to report under the relevant treaties.  This procedure is of limited scope, but in recent years the scope has been extended by the CESCR, which monitors states’ reports.   The development of ESC rights would be strengthened by allowing for individual complaints at the UN by alleged vic­tims of violations of these rights.  Under the European Social Charter (which does not con­tain explicit mention of the right to food, but only the right to freedom from poverty), a similar collective complaint procedure came into force a year ago.

International Obligations

According to ICESCR article 2(1), states parties undertake to take steps "individually and through international assistance and co-operation."  Hence we have to consider international obligations, referring to beneficiaries living outside the territory of the state in question.  These international obligations are particularly important for the right to food.

As far as international respect-bound and protection-bound obligations are concerned, states have to prevent the destruction of access to food in foreign countries.  The fact that the vic­tims live in foreign state B, which has respect-bound and protection-bound obligations itself, does not release state A from the duty to act and have a decisive impact to protect access to food abroad.  Here are two such situations:

If a transnational corporation with a seat in country A destroys access to food in country B (for example, by forced evictions), this should lead to legal action under the legal systems of A even if state B does not intervene. 

If dumping is practiced in international trade by an industry in country A against a vulnerable group in country B and this group would lose its access to food as a con­sequence, this crime against the right to food is to be considered punishable in coun­try A even if country B does not intervene.

Lack of resources and limited control over international trade and finance have an impact on nation-states’ ability to meet their obligation to fulfill access to adequate food.  It shows in particular the need to supplement their national social policies with global social policies.  Employment programs as well as food or cash transfers are some programs that are necessary to ensure access to food.  For some countries this can make considerable demand on the na­tional resources.  International cooperation in the progressive realization of the right to food, as mentioned in ICESCR article 2(1), would mean that there must be an international contri­bution to resource-poor countries for financing such programs-and not only in cases of natural or political calamities.

Author: The author of this module is Rolf Künnemann.

USING MODULE 12 IN A TRAINING PROGRAM

NOTES