Right to food

The right to food, and its variations, is a human right protecting the right of people to feed themselves in dignity, implying that sufficient food is available, that people have the means to access it, and that it adequately meets the individual's dietary needs. The right to food protects the right of all human beings to be free from hunger, food insecurity, and malnutrition. The right to food implies that governments only have an obligation to hand out enough free food to starving recipients to ensure subsistence, it does not imply a universal right to be fed. Also, if people are deprived of access to food for reasons beyond their control, for example, because they are in detention, in times of war or after natural disasters, the right requires the government to provide food directly.
The right is derived from the International Covenant on Economic, Social and Cultural Rights which has 170 state parties as of April 2020. States that sign the covenant agree to take steps to the maximum of their available resources to achieve progressively the full realization of the right to adequate food, both nationally and internationally. In a total of 106 countries the right to food is applicable either via constitutional arrangements of various forms or via direct applicability in law of various international treaties in which the right to food is protected.
At the 1996 World Food Summit, governments reaffirmed the right to food and committed themselves to halve the number of hungry and malnourished from 840 to 420 million by 2015. However, the number has increased over the past years, reaching an infamous record in 2009 of more than 1 billion undernourished people worldwide. Furthermore, the number who suffer from hidden hunger – micronutrient deficiences that may cause stunted bodily and intellectual growth in children – amounts to over 2 billion people worldwide.
Whilst under international law, states are obliged to respect, protect and fulfill the right to food, the practical difficulties in achieving this human right are demonstrated by prevalent food insecurity across the world, and ongoing litigation in countries such as India. In the continents with the biggest food-related problems – Africa, Asia and South America – not only is there shortage of food and lack of infrastructure but also maldistribution and inadequate access to food.
The Human Rights Measurement Initiative measures the right to food for countries around the world, based on their level of income.
The International Covenant on Economic, Social and Cultural Rights recognizes the "right to an adequate standard of living, including adequate food", as well as the "fundamental right to be free from hunger". The relationship between the two concepts is not straightforward. For example, "freedom from hunger" (which General Comment 12 designates as more pressing and immediate) could be measured by the number of people suffering from malnutrition and at the extreme, dying of starvation. The "right to adequate food" is a much higher standard, including not only absence of malnutrition, but to the full range of qualities associated with food, including safety, variety and dignity, in short all those elements needed to enable an active and healthy life.
Inspired by the above definition, the Special Rapporteur on the Right to Food in 2002 defined it as follows:
This definition entails all normative elements explained in detail in the General Comment 12 of the ICESCR, which states:
The former Special Rapporteur on the Right to Food, Jean Ziegler, defined three dimensions to the right to food.
Furthermore, any discrimination in access to food, as well as to means and entitlements for its procurement, on the grounds of race, colour, sex, language, age, religion, political or other opinion, national or social origin, property, birth or other status constitutes a violation of the right to food.
Regarding the right to food, the international community also specified commonly agreed on standards, such as in the 1974 World Food Conference, the 1974 International Undertaking on World Food Security, the 1977 Standard Minimum Rules for the Treatment of Prisoners, the 1986 Declaration on the Right to Development, the ECOSOC Resolution 1987/90, the 1992 Rio Declaration on Environment and Development, and the 1996 Istanbul Declaration on Human Settlements.
There is a traditional distinction between two types of human rights. On the one hand, negative or abstract rights that are respected by non-intervention. On the other hand, positive or concrete rights that require resources for its realisation. However, it is nowadays contested whether it is possible to clearly distinguish between these two types of rights.
The right to food can accordingly be divided into the negative right to obtain food by one's own actions, and the positive right to be supplied with food if one is unable to access it. The negative right to food was recognised as early as in England's 1215 Magna Carta which reads that: "no one shall be 'amerced' (fined) to the extent that they are deprived of their means of living."
This section provides an overview of international developments relevant to the establishment and implementation of the right to food from the mid-20th century onwards.
Amartya Sen won his 1998 Nobel Prize in part for his work in demonstrating that famine and mass starvation in modern times was not typically the product of a lack of food; rather, it usually arose from problems in food distribution networks or from government policies.
The right to food is protected under international human rights and humanitarian law. Within the U.N.'s human rights system, it has been presented consistently as a basic human right.
The right to food is recognized in the 1948 Universal Declaration of Human Rights (Article 25) as part of the right to an adequate standard of living, and is enshrined in the 1966 International Covenant on Economic, Social and Cultural Rights (Article 11). The 2009 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights makes the right to food justiciable at the international level. In 2012, the Food Assistance Convention was adopted, making it the first legally binding international treaty on food aid.
It is also recognized in many specific international instruments as varied as the 1948 Genocide Convention (Article 2), the 1951 Convention relating to the Status of Refugees (Articles 20 and 23), the 1989 Convention on the Rights of the Child (Articles 24(2)(c) and 27(3)), the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (Articles 12(2)), or the 2007 Convention on the Rights of Persons with Disabilities (Articles 25(f) and 28(1)).
The right to food is also recognized in regional instruments, such as:
There are also such instruments in many national constitutions.
There are several non-legally binding international human rights instruments relevant to the right to food. They include recommendations, guidelines, resolutions or declarations. The most detailed is the 2004 Right to Food Guidelines. They are a practical tool to help implement the right to adequate food. The Right to Food Guidelines are not legally binding but draw upon international law and are a set of recommendations States have chosen on how to implement their obligations under Article 11 of the International Covenant on Economic, Social and Cultural Rights. Finally, the preamble to the 1945 Constitution of the United Nations Food and Agriculture Organization provides that:
In 1993, the International Food Security Treaty was developed in the US and Canada.
In 1998, a Conference on Consensus Strategy on the Right To Food was held in Santa Barbara, California, US with anti-hunger experts from five continents.
In 2010, a group of national and international organisations created a proposal to replace the European Union Common Agricultural Policy, which was due for change in 2013. The first article of The New Common Food and Agriculture Policy "considers food as a universal human right, not merely a commodity."
State obligations related to the right to food are well-established under international law. By signing the International Covenant on Economic, Social and Cultural Rights (ICESCR) states agreed to take steps to the maximum of their available resources to achieve progressively the full realization of the right to adequate food. They also acknowledge the essential role of international cooperation and assistance in this context. This obligation was reaffirmed by the Committee on Economic, Social and Cultural Rights (CESCR). Signatories to the Right to Food Guidelines also committed to implementing the right to food at a national level.
In General Comment no. 12, the CESCR interpreted the states' obligation as being of three types: the obligation to respect, protect and to fulfil:
These were again endorsed by states, when the FAO Council adopted the Right to Food Guidelines.
The ICESCR recognises that the right to freedom from hunger requires international cooperation, and relates to matters of production, the agriculture and global supply. Article 11 states that:
The implementation of the right to food standards at national level has consequences for national constitutions, laws, courts, institutions, policies and programmes, and for various food security topics, such as fishing, land, focus on vulnerable groups, and access to resources.
National strategies on the progressive realization of the right to food should fulfill four functions:
The right to food imposes on all States obligations not only towards the persons living on their national territory, but also towards the populations of other States. The right to food is only realised when both national and international obligations are complied with. On the one hand, is the effect of the international environment and, in particular, climate change, malnutrition and food insecurity. On the other hand, the international community can only contribute if legal frameworks and institutions are established at the national level.
Under article 2(2) of the ICESCR, governments agreed that the right to food will be exercised without discrimination on grounds of sex, colour, race, age, language, religion, political or other opinion, national or social origin, property, birth or other status. The CESCR stresses the special attention that should be given to disadvantaged and marginalized farmers, including women farmers, in a rural context.
A framework law is a "legislative technique used to address cross-sectoral issues." Framework laws are more specific than a constitutional provision, as it lays down general obligations and principles. However, competent authorities and further legislation which still have to determine specific measures should be taken. The adoption of framework laws was recommended by the Committee on Economic, Social and Cultural Rights as a "major instrument in the implementation of the national strategy concerning the right to food". There are ten countries that have adopted and nine countries that are developing framework laws on food security or the right to food. This development is likely to increase in the coming years. Often they are known as food security laws instead of right to food laws, but their effect is usually similar.
Advantages of framework law includes that the content and scope of the right can be further specified, state and private actor obligations can be spelled out in detail, appropriate institutional mechanisms can be established, and rights to remedies can be provided for. Further advantages of framework laws include: strengthening government accountability, monitoring, helping government officials understand their role, improving access to courts and by providing administrative recourse mechanisms.
However, provisions for obligations and remedies in existing framework law is not always very thorough, and it is neither always clear what they add to the justiciability of the right to food.
As of 2011, the following ten countries have adopted a framework law on food security or the right to food: Argentina, Bolivia, Brazil, Ecuador, El Salvador, Guatemala, Indonesia, Nicaragua, Peru and Venezuela. Moreover, in 2011 the following nine countries were drafting a framework law on food security or the right to food: Honduras, India, Malawi, Mexico, Mozambique, Paraguay, South Africa, Tanzania and Uganda. Finally, El Salvador, Nicaragua and Peru are drafting to update, replace or strengthen their framework law.
There are various ways in which constitutions can take the right to food or some aspect of it into account. As of 2011, 56 constitutions protect the right to food in some form or another. The three main categories of constitutional recognition are: as an explicit right, as implied in broader human rights or as part of a directive principle. In addition to those, the right can also indirectly be recognised when other human rights are interpreted by a judiciary.
Firstly, the right to food is explicitly and directly recognised as a right in itself or as part of a broader human right in 23 countries. Three different forms can be distinguished.
1. The following nine countries recognise the right to food as a separate and stand-alone right: Bolivia, Brazil, Ecuador, Guyana, Haiti, Kenya, South Africa, in the Interim Constitution of Nepal (as food sovereignty) and Nicaragua (as freedom from hunger).
2. For a specific segment of the population the right to food is recognised in ten countries. Provisions regarding the right to food of children are present in the constitutions of: Brazil, Colombia, Cuba, Guatemala, Honduras, Mexico, Panama, Paraguay, and South Africa. The right to food of indigenous children is protected in the constitution of Costa Rica. Finally, the right to food of detainees and prisoners is additionally recognised in the constitution of South Africa.
3. Five countries recognize the right to food explicitly as part of a human right to an adequate standard of living, quality of life, or development: Belarus, the Congo, Malawi, Moldova and Ukraine, and two recognise it as part of the right to work: Brazil and Suriname. The XX. article of the Fundamental Law of Hungary recognizes the right to food as a part of a human right to health.
Secondly, the following 31 countries implicitly recognise the right to food in broader human rights: Armenia, Azerbaijan, Belgium, Bolivia, Burundi, Cambodia, Czech Rep., Congo, Costa Rica, Cyprus, Ecuador, El Salvador, Equatorial Guinea, Eritrea, Ethiopia, Finland, Georgia, Germany, Ghana, Guatemala, Guinea, Kyrgyzstan, Malawi, Netherlands, Pakistan, Peru, Romania, Switzerland, Thailand, Turkey, Venezuela.
Thirdly, the following thirteen countries explicitly recognise the right to food within the constitution as a directive principle or goal: Bangladesh, Brazil, Ethiopia, India, Iran, Malawi, Nigeria, Panama, Papua New Guinea, Pakistan, Sierra Leone, Sri Lanka, Uganda.
In some countries international treaties have a higher status than or equal status to national legislation. Consequently, the right to food may be directly applicable via international treaties if such country is member to a treaty in which the right is recognised. Such treaties include the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC). Excluding countries in which the right to food is implicitly or explicitly recognised in their constitution, the right is directly applicable in at least 51 additional countries via international treaties.
Parties to the International Covenant on Economic, Social and Cultural Rights have to do everything to guarantee adequate nutrition, including legislating to that effect. The Covenant has become part of national legislation in over 77 countries. In these countries the provision for the right to food in the Covenant can be cited in a court. This has happened in Argentina (in the case of the right to health).
However, citizens usually cannot prosecute using the Covenant, but can only do so under national law. If a country does not pass such laws a citizen has no redress, even though the state violated the covenant. The implementation of the Covenant is monitored through the Committee on Economic, Social and Cultural Rights. In total, 160 countries have ratified the Covenant. A further 32 countries have not ratified the covenant, although 7 of them did sign it.
By signing the Optional Protocol to the ICESCR, states recognise the competence of the Committee on Economic, Social and Cultural Rights to receive and consider complaints from individuals or groups who claim their rights under the Covenant have been violated. However, complainants must have exhausted all domestic remedies. The committee can "examine", works towards "friendly settlement", in the case of grave or systematic violations of the Covenant, it can "invite that State Party to cooperate" and, finally, could "include a summary account of the results of the proceedings in its annual report". The following seven countries have ratified the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: Bolivia, Bosnia and Herzegovina, Ecuador, El Salvador, Mongolia, Slovakia, and Spain. A further 32 countries have signed the optional protocol.
The Special Rapporteur on the Right to Food, De Schutter, urged the establishment in law of the right to food, so that it can be translated into national strategies and institutions. Furthermore, he recommended emerging economies to protect the rights of land users, in particular of minority and vulnerable groups. He also advised to support smallholder agriculture in the face of mega-development projects, and to stop soil and water degradation through massive shifts to agroecological practices. Finally, the UN expert suggested adopting a strategy to tackle rising obesity.
The United Nations' Article 11 on the Right to Adequate Food suggests several implementation mechanisms. The Article acknowledges that the most appropriate ways and means of implementing the right to adequate food will inevitably vary significantly from one State to another. Every State must choose its own approaches, but the Covenant clearly requires that each State party take whatever steps are necessary to ensure that everyone is free from hunger and as soon as possible can enjoy the right to adequate food.
The Article emphasizes that the right to food requires full compliance with the principles of accountability, transparency, people's participation, decentralization, legislative capacity and the independence of the judiciary. In terms of strategy to implement the right to food, the Article asks that the States should identify and address critical issues in regard to all aspects of the food system, including the food production and processing, food storage, retail distribution, marketing and its consumption. The implementation strategy should give particular attention to the need to prevent discrimination in access to food shops and retail network, or alternatively to resources for growing food. As part of their obligations to protect people's resource base for food, States should take appropriate steps to ensure that activities of the private business sector and civil society are in conformity with the right to food.
The Article notes that whenever a State faces severe resource constraints, whether caused by a process of economic adjustment, economic recession, climatic conditions or other factors, measures should be undertaken to ensure that the right to adequate food is especially fulfilled for vulnerable population groups and individuals.
The idea of the interdependence and indivisibility of all human rights was a founding principle of the United Nations. This was recognised in the 1993 Vienna Declaration and Programme of Action which reads "all human rights are universal, indivisible and interdependent and interrelated." The right to food is considered interlinked with the following human rights in particular: right to life, right to livelihood, right to health, right to property, freedom of expression, freedom of information, right to education, freedom of association, and the right to water. Other relevant rights include: the right to work, the right to social security, the right to social welfare, and the right to an adequate standard of living.
For example, according to the Committee overseeing the implementation of the ICESCR, "the right to water is a prerequisite for the realization of other human rights." The need to have adequate water in order to have adequate food is in particular evident in the case of peasant farmers. Access to sustainable water resources for agriculture needs to be ensured to realise the right to food. This applies even more strongly to subsistence agriculture.