A first clear statement of a human right in relation to food emerges from Article 25 of the 1948 Universal Declaration of Human Rights (UDHR) which provides that: ‘Everyone has the right to a standard of living adequate for health and well- being of himself and his family, including food…’7
The right to food was further elaborated in Article 11 of the 1966 International Covenant on Economic, Social and Cultural Rights (ICECSR), now signed by 162 States, which in Article 11(1) repeats the provisions of Article 25 UDHR adding that ‘States Parties will take appropriate steps to ensure the realisation of this right’ … Article 11(2) ICECSR provides that the Parties to the Covenant recognise ‘the fundamental right of everyone to be free from hunger’ and obliges States Parties to take measures ‘individually and through international cooperation to improve methods of production, conservation and distribution of food’.8
In 1999 the UN Committee on Economic, Social and Cultural Rights published General Comment 12 examining the normative content of the right to food. While recognising that there are two distinct rights in Article 11 ICECSR, the Committee proceeded on the basis that there is a single general right to adequate food. This right implies ‘[t]he availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture…’ and ‘… [t]he accessibility of such food in ways that are sustainable and do not interfere with the enjoyment of other human rights’.
It can be questioned whether the synthesis of Article 11 ICSECR into a single right to adequate food properly reflects the scope of Article 11.
Some differences between the right to food and the right of freedom from hunger are worth considering. In the first place, the right to food is a sub norm of the right to an adequate standard of living while the right to be free of hunger is a fundamental right. Does the fact that the latter right is fundamental allow it to be ranked higher among the human rights and mean that it is a factor to be taken into consideration when balancing different rights? Secondly, as a fundamental right, is the right to be free from hunger a concept in law different from, and pre- dating, the listing of human rights in the Universal Declaration and the Bill of Human Rights? Thirdly, while all rights are difficult to pin down, quantification of the separate rights will always be different. Providing a specific quantity or quality of food to fulfil the right to adequate food or ensuring that everyone is free from hunger require very different considerations in law and in practice. In addition, it is clear that, today, there are sufficient calories produced in the world to ensure everyone is free from hunger, so resource based arguments cannot apply to the fundamental hunger right while they might apply to the right to food.
It may be that the reason the Committee considered that the right to food should be considered as the unified right to adequate food is a consequence of the debate on the nature of the obligations States had undertaken in signing the Covenant. An early misconception was that the economic, social and cultural rights in the ICESCR must be provided directly by the State: i.e. by virtue of the right to food, the State had to provide a fixed amount of food to its subjects. A shift is noted in General Comment 12. The Committee makes clear that the individual is the active subject of the right and not its object. In other words, States must set the framework for individuals to care for themselves and only step in directly in limited circumstances.
Paragraph 17 of General Comment 12 provides that State Parties to the Covenant have an obligation to respect, protect and fulfil the right to adequate food as follows:
- the obligation to respect means that States must refrain from taking measures preventing access to food such as restricting food culture and diversity, or denying subjects the right to earn their livelihood;
- the obligation to protect means that States must prevent others from impeding access to adequate food, such as in relation to land tenure rights but equally in relation to unfair contract terms, food fraud, food safety or unethical behaviour;
- the State obligation to fulfil arises where positive measures are required to ensure marginalised or disadvantaged groups have access to food or where climatic or political disturbances interrupt the local availability of food.
Resolution of the nature of State obligation has allowed more recent debates on the right to adequate food to focus on justiciability vis-à-vis States and the role of non-State actors such as transnational corporations and NGOs. In 2008 an Optional Protocol on the violation of ICESC rights was adopted to apply when all local legal remedies have been exhausted. As of September 2015 this Optional Protocol only has 45 signatories and 21 State Parties. A report to the UN General Assembly dated 12 January 2014 by the Special Rapporteur on the right to food, Hilal Elver, gives a good overview of current developments.9
The notion of adequacy raises many questions for the future. The Committee considered that the concept of adequacy includes both food security and sustainable food production, but the precise meaning is determined by local social, economic, cultural, climatic, ecological and other conditions while sustainability includes long-term availability and accessibility. The 1989 Convention on the Rights of the Child recognises the right to the health of children and the importance of good nutrition. In this context, there has been much debate and action on, for example, the advantages of breast-feeding over breast milk substitutes. The issue of over- nutrition or obesity, particularly in the developed world, will require us to expand our understanding of the word adequate in the right to food. Does adequate mean something more than sufficient calories, proteins and micronutrients and does it relate to the means by which these essential nutrients are delivered. In other words, does the right to adequate food impact on developed country food law allowing for highly processed, long shelf life, reconstituted foods as well as the common food eating habits in large western cities. Traditionally the right to adequate food looked more to conditions in the developing world. This may now change.
The 1996 World Food Summit10 set a target of reducing world hunger by 50% by 2015. This has not happened. The number of people who are hungry stays at the same overall level between 800 and 1,000 million people. There is surplus food in the world, so the problem is not Malthusian. It is political. The most important change now needed is the political will to respect the fundamental right for everyone to be free of hunger.