Master’s Thesis
State’s Obligations of International
Cooperation Towards Safeguarding
the Right To Food.
LL.M International and European Law - Public International Law
Author: Valerie Tiana Püschel
Supervisor: prof. dr. Yvonne M. Donders
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A
BSTRACT
The realization of the right to food is dependent on a number of variables and states are in a position to affect such realization beyond their own borders. While it is undisputed that states are the primary duty-bearers for the realization of human rights on their own territory, obligations that reach beyond the national state have been less in the focus. The thesis is a research into these extraterritorial obligations of states, in particular into the duty of international cooperation and assistance, regarding the right to adequate food. The obligation to internationally cooperate and assist is found in the United Nations Charter (UNC), as well as the Universal Declaration of Human Rights (UDHR), and more specifically is addressed both in the general obligations article (art. 2(1)) of the ICESCR, as well as reiterated twice in the provision addressing the right to food (art. 11) of the ICESCR.
The introductory chapter will set out the context and general information pertaining to the reader. Chapter II will focus on general human rights obligations, especially on economic, social and cultural (ESC) rights with a focus on art. 2 ICESCR. Chapter III will focus on extraterritoriality in a more general nature, laying out questions of terminology, its definition and state obligations. Chapter IV will first lay out the relevant legal bases for the right to food and then set out to apply the information of the previous two chapters in order to answer the primary research question - namely to delineate state obligations of international cooperation in regard to the right to food. Chapter V will conclude with the main points to be extracted from the prior chapters, with a short look to the role of these obligations in current developments and the future.
The research concludes that there are a number of legal obligations incumbent on states, that are in a position of influencing the realization of human rights abroad, to respect, protect and fulfil the right to food by international cooperation and assistance. In doing so, states must actively seek for international cooperation and assistance if incapable of realizing the Covenant rights by themselves. Conversely, states must provide such assistance when they are in a position to do so without compromising the realization of the Covenants rights under their primary duty owed to people under their jurisdiction.
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T
ABLE OF
C
ONTENTS
Chapter I: Introduction ... 3
1.1 Structure and Research Questions ... 6
1.2 Methodology ... 6
1.2.1 Demarcations ... 9
Chapter II: General State Obligations ... 10
2.1 Introduction ... 10
2.2 The United Nations Framework ... 10
2.3 State’s Human Rights Obligations ... 11
2.4 Legal Nature of State’s Obligations under the ICESCR: Article 2 ... 13
Chapter III: Extraterritoriality ... 16
3.1 Introduction ... 16
3.2 Extraterritoriality in Human Rights Obligations ... 16
3.2.1 Terminology of Extraterritorial Obligations ... 16
3.2.2 The Different Dimensions of Extraterritoriality ... 17
3.3 Legal Bases for States’ Extraterritorial Human Rights Obligations ... 18
3.3.1 General Introduction to State’s Human Rights Obligations of International Cooperation ... 18
3.3.2 State Obligations of International Cooperation under the ICESCR ... 19
3.4 Extraterritorial Obligations of States to Respect, Protect, Fulfil ... 22
Chapter IV: The Right To Food ... 24
4.1 Introduction ... 24
4.2 The Right to Food under the ICESCR: Article 11 and Its Normative Content ... 25
4.3 Obligations of States Regarding the Right to Food Under Article 11 ... 28
4.3.1 Progressive Adoption of Measures ... 28
4.3.2 Non-Discrimination ... 28
4.3.3 Respect, Protect and Fulfil (Facilitate and Provide) ... 29
4.4 States’ Legal Obligations Of International Cooperation Specific to Article 11 ... 30
4.4.1 Obligations of International Cooperation to Respect, Protect and Fulfil Article 11 ... 31
4.4.2 International Cooperation in the Equitable Distribution of World Food Supplies ... 34
Chapter V: Conclusion ... 36
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C
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I
NTRODUCTION
Every four seconds a person dies of starvation, an estimated average that encompasses hunger and hunger-related deaths.1 Typically, this will be a child under the age of five. Around 795 million people live in hunger or chronic undernourishment, which is one in nine humans.2 In fact, one in three, suffer from some form of malnutrition.3 Obesity, on the other hand, has been estimated to have doubled since 1980 to 1.5 million people being overweight.4 There is in fact enough food produced to theoretically feed everyone.5 However, a large percentage of food is wasted or lost.6 Paradoxes like these raise questions as to why the right to food has not yet been more widely realized, when in theory both the necessary technology and abundance in food are available. Importantly, this hiatus in the world food supply and consumption leads to many human rights (HR) violations - not solely of the right to an adequate standard of living, including the right to food. It furthermore relates to the underlying concept of ensuring fundamental human dignity and is interrelated to several other human rights, such as the right to life, or the right to health.7
These exacerbating inequalities, in for instance food availability, demonstrate the widespread non-fulfilment of the right to food - underlining both the relevance of and choice for this topic. The right to food has been firmly established, such as in the Universal Declaration of Human Rights (UDHR) and the International Covenant of Economic, Social and Cultural Rights (ICESCR).8 The realization of the right to adequate food is a matter of both affordability or accessibility, as well as availability.9 These notions are influenced by a complex network of many factors, such as
1see, e.g.:United Nations World Food Program (WFP), “World Hunger and Poverty Statistics”, website, WFP (2015), retrieved
from http://www.worldhunger.org/2015-world-hunger-and-poverty-facts-and-statistics/ (last accessed 02.03.2017), 2 Food and Agriculture Organization of the United Nations (FAO), The State of Food Insecurity in the World 2015, (2015). 3 United Nations World Food Programme (WPF), “Zero Hunger”, website, retrieved from http://www1.wfp.org/zero-hunger (last accessed 02.03.2017);
4 World Health Organization (WHO), Obesity Statistics, (2016), web, retrieved from http://www.who.int/mediacentre/factsheets/fs311/en/ (last accessed 03.02.2017);
5 Hunger Notes, (2015). World Hunger and Poverty Statistics, retrieved from http://www.worldhunger.org/2015-world-hunger-and-poverty-facts-and-statistics/ (last accessed 24 May 2015)
6 Gustavsson, Jenny, et al. "Global food losses and food waste. Extent, causes and prevention. Rome. Italy: FAO (2011), p.4. 7 Pooja, Ahluwalia. "The Implementation of the Right to Food at the National Level: A Critical Examination of the Indian Campaign on The Right to Food as an Effective Operationalisation of Article 11 of ICESCR." Center for Human Rights and Global Justice Working Paper, Economic, Social and Cultural Rights Series 8 (2004)., p. 14; rf. Alston, Philip. "International law and the human right to food." The Right to Food (1984): 9-68, in Alston, Philips, and Katarina Tomaševski, eds. The right to food. Vol. 4. Martinus Nijhoff Publishers, p.19.;
8 United Nations General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), art. 25; United Nations General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3. art. 11.
9 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, E/C.12/1999/5, e.g. para. 7.
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international food prices, global warming, but also development levels, such as the available technical know-how.10 Therefore this issue goes beyond the territorial borders, as states can have a great impact on all these factors both by acting from their territory and abroad.
Contemporary legal structures operate traditionally and principally from a state-centric view, meaning the national state has the primary obligations over its territory and the people within. However, in the era of globalization, internationalism plays an increasing role - resulting in increasing interrelatedness between the activities of states. Hence, the acts or the refrainment from acts of one state can have a significant effect on the realization of human rights in another, necessitating increased cooperation. Furthermore, certain problems simply cannot be contained or solved within the territorial state only, such as global warming, as it does not stop at a states’ border. In the legal sphere this aspect has led not only to more cooperation and a large number of international treaties over time, but also to more recognition of certain extraterritorial obligations. Though there seems to be a scarcity in discourse, for instance in legal literature or cases, there is a growing body of research on extraterritoriality for economic, cultural and social rights. The most prominent perhaps being the Maastricht Principles on Extraterritorial Obligations in the area of Economic, Social and Cultural Rights (Maastricht Principles), an international expert opinion restating and clarifying standing international human rights law (IHRL).11 The Maastricht Principles distinguish extraterritorial obligations into three types of situations. Namely, (1) where the state has authority or effective control outside the territory, (2) where a state’s actions have a foreseeable effect irrespective whether acting from its own territory or abroad, and finally (3) where a state is in a position to exert decisive influence.12 The latter type of situations encompasses the obligation to international cooperation and assistance, which will be the central focus of the research.
This need for international cooperation and assistance has also been long recognized in regard to economic and social rights, such as in the UNC13, the UDHR14 and the ICESCR.15
However, in the literature research for this study it was found that state’s obligations of
10 See, e.g.: Ziervogel, Gina, and Polly J. Ericksen. "Adapting to climate change to sustain food security." Wiley Interdisciplinary Reviews: Climate Change 1.4 (2010): 525-540, p.528, 535.
11 Extraterritorial Obligations (ETO) Consortium. Maastricht Principles On Extraterritorial Obligations of States in the Area of Economic, Social and Cultural rights. ETO Consortium (2011), p.3. (introduction)
12 ETO, Maastricht Principles (2011), principle 9.
13 United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, Chapter IX, in particular art. 1(3), 55, 56. 14 UDHR48, arts. 22, 28.
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international cooperation to realize the right to food have not been widely discussed. Moreover, it seems to be relatively absent in general political discourse, which instead appears to focus more on welfare and aid, as opposed to phrasing states’ international cooperation in terms of legal obligations. Importantly, there is no disagreement that the primary obligations to respect, protect and fulfil rights within their jurisdiction lies with the national state. However, the ICESCR states the necessity of international assistance and cooperation both in general (Art. 2), as well as in specific for the right to food (Art.11). This makes an extraterritorial perspective on obligations regarding the right to food a subject of particular interest for three main reasons. First of all, the ICESCR entails a general obligation to international cooperation and assistance, but not a territorial or jurisdiction clause. Secondly, the most explicit and elaborate reiteration of the duty of international cooperation is to be found in the provision on the right to food, compared to all other substantive rights of the ICESCR. Additionally, in light of the underlying societal inequalities described, potential obligations of international cooperation may substantially contribute in the realization of the right to food. Thus the principal research question reads as follows:
To what extent is there a legal obligation compelling signatory states to internationally cooperate in realizing the right to adequate food under art. 11 ICESCR?
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1.1STRUCTURE AND RESEARCH QUESTIONS
This introductory chapter will set out the context and general information pertaining to the reader, as well as the reasons of topic choice and its academic relevance. Chapter II will focus on general human rights obligations, especially of ESC-rights with a focus on art. 2 ICESCR. It will answer what the tripartite typology of obligations - to respect, protect and fulfil - entails under the ICESCR. The chapter will further lay out the general obligations of signatory states to the Covenant by analyzing its general obligations article (Art. 2 ICESCR). Chapter III will focus on extraterritoriality - answering questions of terminology, of its definition and different dimensions, as well as of what obligations the concept imposes on states. It will inquire to what extent there are general legal obligations to internationally cooperate. Answering this, the chapter will research the legal status and normative content of the obligation to cooperate and assist in the realization of ESC-rights. Chapter IV will first lay out the relevant legal bases for the right to food in an analytical approach to establish the foundation of the corresponding extraterritorial duties. In order to do so, first the questions of what the legal basis and normative content of the right to adequate food is, as well as what its corresponding legal obligations are will be addressed. The chapter will then set out to apply the information of the previous two chapters in order to answer the primary research question - To what extent is there a legal obligation compelling signatory states to
internationally cooperate in realizing the right to adequate food under art. 11 ICESCR? The
question implies several sub-questions this chapter will answer - mainly what the legal status and normative content of states’ legal obligations of international cooperation are under right to food (Art. 11 ICESCR). Lastly, it will be inquired to what extent, if any, there is a legal obligation compelling signatory states to ensure an equitable distribution of world food supplies under art 11(2)(b) ICESCR. Chapter V will conclude with the main points from the prior chapters, with a short look to the role of these obligations in current developments and the future.
1.2METHODOLOGY
The thesis will take form of a literature research into states’ extraterritorial obligations, in particular into duty of international cooperation and assistance, regarding the right to adequate food. In order to achieve this goal and a comprehensive understanding, this research will engage in an analysis of number of different sources, principally founded on primary sources of the most relevant international legal texts, complemented with authoritative interpretations, commentaries
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and literature of legal scholars. Some instruments and sources relevant in understanding and interpreting treaties, in particular the ICESCR, will shortly be explained, as they are part of the methodology of treaty interpretation to be used in this research.
Of relevance in analyzing a state’s general HR obligations is the Vienna Convention on the Law of Treaties (VCLT)16, which is considered to in large parts reflect customary international law (CIL).17 The VCLT is of importance because it provides not only general treaty obligations,
but further serves as a tool of interpretation for treaties. In particular of relevance here is that states party to a treaty commit to uphold their treaty obligations in good faith, by virtue of pacta sunt
servanda.18 States’ treaty obligations can to a certain extent be limited, such as categorically ex-ante via the medium of reservations.19 However, states’ reservations may not go against the nature of the treaty and may be limited or prohibited by the treaty itself.20 In regards to HR treaties the entering of reservations has been criticized on various grounds, such as that would always go against the object and purpose.21 Furthermore, certain situations ex-post, allow for a temporal derogation of state obligations under certain strict conditions of those rights that are not peremptory.22 Notably, the ICESCR does not contain a derogation clause, however sets forth in a limitation clause that the only legitimate aim for limiting rights seems to be the promotion of general welfare, though the term may provide certain interpretive leeway. 23
Moreover, it is necessary to shortly explain an interpretative tool used extensively in the following research besides direct treaty law and secondary literature, namely the General Comments (GCs) of the Committee on Economic, Social and Cultural Rights (CESCR). The Committee, a group of 18 independent experts, was established to carry out the monitoring functions assigned to the Economic and Social Council.24 The legal status of the GCs is clearly of
a non-binding nature. However, though the content of these is not always unequivocally agreed upon by ratifying states, the CESCR is the official treaty body of experts whose comments are
16 United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155 p. 331. 17 See, e.g.: Sinclair, Ian Mc Taggart. The Vienna Convention on the law of treaties. Manchester University Press, 1984, p. 7. 18 VCLT69, art. 26.
19 VCLT69, art. 19. 20 VCLT69, art. 19.
21 For further discussion, see, e.g.: Hill, Daniel W. "Avoiding Obligation: Reservations to Human Rights Treaties." Journal Of Conflict Resolution 60.6 (2016): 1129-158.
22 See, e.g.: ICCPR66, art. 4; UDHR48 art. 29(2);
23 ICESCR66, art. 4.; Giacca, Gilles. "Limitations on Conventional Economic, Social, and Cultural Rights on Security Grounds." (Chapter 3) in Economic, Social, and Cultural Rights in Armed Conflict. Oxford UP, 2014, p. 76.; ICESCR66, part IV.. 24 UN Economic and Social Council (ECOSOC), Resolution 1985/17, UN ESCOSOC E/RES/1985/17 (28 May 1985).
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perceived as the most authoritative interpretations and clarifications of the Covenants’ normative content.25
Furthermore, the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights (Limburg Principles) and the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights (Maastricht Principles) are a relevant source of treaty interpretation. They constitute the major body on authoritative work done on extraterritoriality of ESC-rights, including international cooperation and assistance, and will be relied on in the analysis of this research. The Limburg Principles were adopted in 1987 to provide a better understanding of the nature and scope of ICESCR state parties’ obligations26 and they also shed more light on the obligations of
international co-operation and assistance27 according to the contemporary international law (IL) at time of writing.28 The Maastricht Principles from late 2011 are an extension and complementation of the Limburg Principles, confirming the latter’s ongoing validity.29 Though it needs to be stressed that they are non-binding and of an academic nature, the Limburg and Maastricht Principles are authoritative interpretations of the ICESCR.30 They represent an international expert opinion31, which is according to the Statute of the International Court of Justice is a subsidiary means for the determination of the rules of law.32 Furthermore, both set of principles have been widely cited and relied upon by for instance scholars and HR organizations.33
25 See, e.g.: Khalfan, Ashfaq. "Division of responsibility amongst states." in Langford, Malcolm. Global Justice, State Duties: the Extraterritorial Scope of Economic, Social and Cultural Rights in International Law, Cambridge University Press, (2013).:299-366.), p. 300.
26 The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights." Human Rights Quarterly 9.2 (1987): 122, para. (i).
27 Limburg Principles (1987), paras. (i), 26-33. 28 Ibid., para. (iii).
29 ETO, Maastricht Principles (2011), preamble. 30 ETO, Maastricht Principles (2011), p. 4. 31 ETO, Maastricht Principles (2011), introduction.
32 United Nations, Statute of the International Court of Justice, 18 April 1946, art. 38 (d).
33 See, e.g.: Coomans, Fons. "Situating the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights." (2013).; Schutter, Olivier D., et. al, "Commentary to the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights." Human Rights Quarterly 34.4 (2012): 1084-169.; Skogly, Sigrun. "Extraterritoriality: Universal human rights without universal obligations." (2010).; Pooja, (2004).
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1.2.1 Demarcations
Due to space constraints and in order to be able to go more into depth on the central question, the scope of this study does not allow to go into detail in several aspects, such as obligations that are of regional or national nature. Furthermore, this research will omit an analysis of customary law, as preliminary research suggests that there is no sufficient existence of either state practice or opinion juris that would suggest its existence in context of extraterritorial obligations of ESC-rights. In regard to specific obligations, this study only lays out the general obligations derived from international treaty law, and will exclude reviews of country-specific obligations. Another limitation regarding sources concerns the exclusion of case-law, in that national case law will not be discussed and directly relevant international case law under the ICESCR does not exist. Importantly, regarding the content, this thesis will only analyze the obligation of states and not encompass obligations of non-state actors. Likewise, the research will solely analyze state’s obligations towards right-holders and not include those towards non-state actors. Moreover, regarding the content, the consequence of such potential obligations, such as responsibility, enforcement and remedies, will also not be addressed. Regarding extraterritoriality, the research will prominently focus mainly on the dimension of international cooperation and assistance.
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O
BLIGATIONS
2.1INTRODUCTION
Every human being has the right to be free from hunger, as has been codified in a plethora of international instruments.34 The signatory states to these instruments have obligations to assure
the realization of this right. Contracting states are thereby the duty-bearers, as opposed to the right-holders, and thus must fulfil obligations under the respective HR instrument.35 Naturally, the right to adequate food is part of a larger human rights framework which imposes general obligations.
2.2THE UNITED NATIONS FRAMEWORK
The conceptualization of human rights has been guaranteed by the increasing codification in several international instruments over time. Examples of such are multifold and in the UN framework these treaties have at its foundation the UDHR and the UNC, though not a HR treaty as such. The UNC obliges states to promote universal respect for and observance of human rights and fundamental freedoms.36 The UNC enjoys nearly a holistic membership of all states, on which
it is legally binding. Hence, the provisions referring to the observance of HRs can be said to be a general obligation of IL and is by some scholars even considered to reflect a norm of CIL.37 The
UDHR is a declaration and therefore neither a legally binding treaty, nor enforceable instrument as such.38 However, its preamble proclaims the UDHR be “a common standard of achievement for all peoples and nations”.39 Moreover, it enjoys widespread acceptance and authority and is by some considered to have become binding, such as by in parts reflecting CIL.40 The UNC and UHDR thus laid the basis for the subsequently emerging framework of HR treaties, by making human rights a central issue. The UN treaty framework has produced a number of prominent
34 See, e.g.: UDHR48, ICESCR66, UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3.
35 Kälin, Walter, and Jörg Künzli. The law of international human rights protection. Oxford University Press, USA, 2009., pp. 77-78.
36 UNC45, art. 1(3), art. 55.
37 See, e.g.: Boucher, David. "The Recognition Theory of Rights, Customary International Law and Human Rights." Political Studies 59.3 (2011): 753-71, p. 764.
38 Shaw, Malcolm N. International Law. Seventh ed. 2014. Cambridge University Press, p. 203-204. 39 UDHR48, preamble, para. 8.
40 See, e.g.: Jennings, Robert, and Watts, Arthur, The objects of international law: individuals” (Chapter 8) in Oppenheim's International Law Vol. 1, Peace. 9th ed. London: Longman, 2008, p. 1004.; Shaw (2014), p. 204.
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treaties - of which the International Covenant on Civil and Political Rights (ICCPR) and the ICESCR, form together with the UDHR the so-called “International Bill of Human Rights”.41
2.3STATE’S HUMAN RIGHTS OBLIGATIONS
Human rights obligations are often characterized as being of a ‘special character’ compared to other types of obligations.42 This distinction is characterized by differences such as a lack of reciprocity between states and in creating rights for individuals.43 A different nature of the obligations follows from this special character, namely that less discretion is granted to states in the implementation of HRs.44 Originally these obligations have been broadly divided into being of a negative and positive nature.45 Whereas a negative obligation signifies that it requires merely forbearance, a positive obligation entails the necessity to actively ensure the realization of the respective right.46 Nowadays all HRs are perceived to require both negative and positive obligations.47 For one, because it has been recognized that HRs are indivisible and interdependent and interrelated.48 Due to the ‘broad and comprehensive character’ of HR duties, a threefold obligation to ‘respect, protect and fulfil’ these rights has been developed, which has been used especially for ESC-rights.49 This tripartite typology was adopted in practice by the UN human rights framework in some of their treaties, including the ICESCR.50 Therefore, focusing on the
right to food as under the ICESCR, this research is structured according to the more refined tripartite typology of obligations, as adopted inter alia by the UN treaty body for the ICESCR.51
In practical terms though, all three of those obligations are interrelated and not always easily distinguishable.52
41 See, e.g.: OHCHR (2005), p. 13.
42 See, e.g.: Mégret, Frédéric. "Nature of obligations." in Moeckli, Daniel, et al. International human rights law. Oxford University Press, 2013: 96 – 118, pp. 96-101.
43 Ibid., pp. 99-101. 44 Ibid., p. 101.
45 See, e.g.: Donnelly, Jack. Universal human rights in theory and practice. Cornell University Press, 2013, p. 43.; Fredman, Sandra. Human Rights Transformed: Positive Rights and Positive Duties. Oxford UP, 2008, p. 66.; Van Boven, Theo. "Categories of rights." in Moeckli, Daniel, et al. International human rights law. Oxford University Press, 2013: 143-165, pp. 143-150.; pp. 143-145.
46 Donnelly (2013), p. 42.
47 See, e.g.: Fredman (2013), p. 43.; Van Boven (2013), pp. 143-150.; Kälin and Künzli (2009), p. 96.
48 See, e.g.: ICCPR preamble; ICESCR preamble; the UDHR; Fredman (2008), pp. 65-69.; Mégret (2013), pp. 143-150. 49 Mégret (2013), p. 101.
50 Ibid., p. 101.
51 See, e.g.: CESCR, GC12 (1999), para. 15.; Mégret (2013) p. 101. 52 Mégret (2013), p. 103.
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The obligation to respect entails the negative duty for states to refrain from interference in the enjoyment of human rights, by not taking any action that will result in the violation of a given right.53 Perhaps the most classic obligation, it flows automatically from HRs54 and extends to all organs and agents of the government.55
The obligation to protect requires the positive duty to take steps to actively prevent a violation of human rights by third parties and thereby protect individuals to whom those rights are owed.56 This so-called ‘indirect horizontal effect’ is the concept used in HRs to refer to this
obligation to engage in due diligence to protect individuals from third parties.57 Moreover, it also
includes threats emanating from natural or human-made risks, which may prejudice interests safeguarded under HRs.58 It even encompasses ultra-vires acts of state-agents, as well as acts of agents of other states.59 However, the obligation to protect applies only to violations that could have been prevented, as well as regards only the threats could have been aware of.60
The obligation to fulfill, entails the positive duty to take action, which leads to a greater enjoyment of human rights.61 Hence, there is an obligation to realize rights in the situation where the right-holder has the incapacity to satisfy human rights guarantees on their own.62 This duty also encompasses the obligatory creation of certain legal, institutional and procedural conditions that right-holders need in order to achieve the full realization and enjoyments of the Covenant rights. While the duty to establish legislative measure is seen as the primary obligation, the CESCR has clarified that it incorporates ‘administrative, financial, educational and social measures’ and other appropriate measures.63 Thus, the obligation to fulfill is to promote human
rights domestically and internationally, such as via foreign policy.64 In certain cases, right-holders can only enjoy a human rights guarantee if the state actively provides support, for instance in form
53 See, e.g.: Mégret (2013), p. 102. 54 Kälin and Künzli (2009), p. 96.; 55 Mégret (2013), p. 102.
56 Ibid., p. 102. 57 Ibid. p. 102.
58 Kälin and Künzli (2009), p. 96. 59 Ibid., p. 96.
60 Ibid., p. 96.
61 Mégret, (2013), p. 103. 62 Kälin and Künzli (2009), p.116.
63 UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 3: The Nature of States Parties' Obligations (Art. 2, Para. 1, of the Covenant), 14 December 1990, E/1991/23, para. 7.
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of goods such as food, which makes a state’s obligation to fulfil principally dependent on its capacity to do so.65
2.4LEGAL NATURE OF STATE’S OBLIGATIONS UNDER THE ICESCR:ARTICLE 2
The legal nature and scope of the obligations under the Covenant are laid out in general art. 2, which states the duty of states to progressively achieve the full realization of the Charter rights.66 This article is of importance also because it sets out the context in which all other articles are to be understood.67 Art. 2(1) reads as follows:
1. Each State Party to the present Covenant undertakes to take steps, individually and
through international assistance and co-operation, especially economic and technical, to
the maximum of its available resources, with a view to achieving progressively the full
realization of the rights recognized in the present Covenant by all appropriate means,
including particularly the adoption of legislative measures.68
The nature of the general obligations embodies several distinct features that may be highlighted, in particular that of ‘progressive realization’.69 Considering potential constraints, in
for instance resources, the Covenant rights are generally to be fulfilled over time.70 Importantly though, several duties do have an effect that is immediate.71 The obligations not to discriminate, as well as ‘to take steps’ are of immediate effect, which are central to understanding the nature of State parties duties.72 Furthermore the Committee established there to be a ‘core’ obligation, a sort of minimum requirement for each of the rights, which has to be realized with immediacy.73 This is based on the rationale that if not even such minimum essential levels would be upheld, the respective right itself would lose its raison d’etre.74 This minimum core includes the obligation to safeguard ‘respect for minimum subsistence rights for all’, which includes the right to adequate food.75 Furthermore, states have to use the ‘maximum of its available resources’ when realizing their respective obligations.76 It follows from art. 2 that the general obligations incumbent on states may be exercised with a certain amount of discretion regarding the type and scale of the means
65 Kälin and Künzli. (2009), p. 97. 66 CESCR, GC3 (1990), i.e. see para. 9. 67 Ibid., para.1.
68 ICESCR66, art. 2(1) [emphasis added] 69 CESCR, GC3 (1990), para.1.
70 Ibid., para.1. 71 Ibid., para.1.
72 CESCR, GC3 (1990), para.1.
73 CESCR, GC3 (1990), para.10.; CESCR, GC12 (1999), paras. 6, 8.
74 CESCR, GC3 (1990), para.10.; see also, e.g.: Kälin and Künzli (2009), p.117. 75 Limburg Principles (1987), para. 25.
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with which to achieve full realization. Yet, the modalities of the undertaking are fixed within certain binding parameters.77 These parameters include the usage of the maximum amount of resources with immediacy, as well as the utilization of all appropriate means.78 Moreover, “to take steps” entails that measures must be taken in ‘a reasonably short time’, as well as ‘to move as expeditiously as possible’ when progressively realizing rights.79 Measures ought to be ‘deliberate,
concrete and targeted as clearly as possible’80 and should (sometimes must) include legislation.81 The phrase “by all appropriate means” further includes other measures, such as of ‘administrative, judicial, economic, social and educational’ nature.82 In addition, states have the obligation to
monitor and report their progress in realizing the Covenant rights.83
Non-discrimination, addressed in a separate comment, is of importance as a general obligation not only due to its immediate effect, but because the grounds of discrimination addressed include, inter alia, social origin and property.84 State parties are under the general obligation to end de jure discrimination immediately, and de facto discrimination as quickly as possible.85 The right to food has been connected to discrimination86, for instance to people working in rural areas or the urban inhabitants with lack of economic means, which are in effect often indirectly or de-facto discriminated against by for instance unequal access or high food prices.87 Therefore, for instance, discrimination-reduction strategies of states relating to food should lay focus among other things on both access to and resources for food.88
Finally, art. 2(1) refers to ‘international cooperation and assistance’, in particular of ‘economic and technical’ nature.89 In this regard, the duty to use the maximum of resources, refers
not only to those available in a given state, but also to resources available from the international community through means of international cooperation and assistance.90 Hence, the duty to
77 Kälin and Künzli (2009), p. 116. 78 Ibid., p.116.
79 CESCR, GC3 (1990), paras. 1-2., 9. 80 Ibid., para. 2.
81 Ibid., para. 3.
82 Limburg Principles (1987), para, 17-18. 83 CESCR, GC3 (1990), para. 11.
84 CESCR, GC3 (1990), para. 1.; CESCR, GC12 (1999), para. 7. 85 Limburg Principles (1987), paras. 37, 38.
86 CESCR, GC12 (1999), paras. 18, 19. 87 See, e.g.: UNHRC (2011), paras. 23-28. 88 CESCR, GC12 (1999), para. 26.
89 See ICESCR66, art 2(1) and 23, see also: CESCR, GC3 (1990), para. 13. 90 CESCR, GC3 (1990), para. 13.
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international cooperation and assistance, both providing and seeking it, is part of the states’ general obligations framework under the ICESCR.
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3.1INTRODUCTION
The traditional and common way of thinking about HR obligations is from a state-centric view.91
This refers to the typical territorial framing of rights, based on the notion that each government is responsible for the people on their territory.92 This resorts back to the birth of modern IHRL -
traditionally operating in the Westphalian world order of territorially distinct and sovereign states.93 States are therefore primary duty-bearers for human rights within its borders.94 Nonetheless, several of the mentioned HR instruments contain wording suggestive of obligations with an extraterritorial dimension.95 Through a growing body of international instruments, authoritative interpretations, case law96 and research - it has become clear that states are no longer the sole guardians of human rights in their internal affairs.97
3.2EXTRATERRITORIALITY IN HUMAN RIGHTS OBLIGATIONS
3.2.1 Terminology of Extraterritorial Obligations
Several terms have been used by international legal scholars to describe obligations with an extraterritorial dimension, such as ‘transnational/transboundary/transborder/crossborder/ international/universal/external/inter-state/third-state/ or global obligations’.98 Though there are many different terms, they all broadly refer to the same phenomena, namely the relationship between one state as the duty-bearer and the individual or group of individuals as right-holders of another state or states.99 This relationship has therefore been characterized as diagonal.100 This thesis refers to ‘extraterritorial obligations’, a term which appears to be prevalent and to have gained increasing recognition.101
91 See, e.g.: Langford, Malcolm, et al. "Introduction: an emerging field." (2013) in Global Justice, State Duties: The Extraterritorial Scope of Economic, Social, and Cultural Rights in International Law /. Cambridge: Cambridge UP, 2014, p. 3.
92 Ibid., p. 3. 93 Ibid., p. 3. 94 Ibid., p. 3.
95 See, e.g.: art. 2 ICESCR66; arts. 55, 56; UNC45; art 28 UDHR48; Langford, et. al. (2013), p. 3.
96 See: Coomans, Fons. and Rolf Künnemann, Cases and Concepts on Extraterritorial Obligations in the Area of Economic, Social and Cultural Rights /. International Specialized Book Services, 2012. Universiteit Maastricht. Centre for Human Rights.; 14. 97 Jennings and Watts (2008), p. 1000.
98 Gibney, Mark. "On Terminology: Extraterritorial Obligations." in Langford, Malcom. Global Justice, State Duties. The Extraterritorial Scope of Economic, Social, and Cultural Rights in International Law. Cambridge University Press, Cambridge (2013): 32-47, p. 32.
99 Ibid., p. 45. 100 Ibid., p. 32, 45. 101 Ibid., p. 38.
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The second term to be shortly addressed is that of ‘international obligation’, as it has been used by the CESCR.102 Though the term international obligation is described as a notion wider than extraterritorial obligations103, it is however taken to be referring to the same set of obligations relating to said diagonal relationship.104 International obligation is not to be equated with the obligation to international cooperation, as the latter is solely one dimension of the broader category of extraterritorial or international obligations. 105 For clarity, in this research the term extraterritorial obligations will be used.
3.2.2 The Different Dimensions of Extraterritoriality
The extraterritorial obligations of states arising in the realization of ESC-rights can be distinguished into broadly three situations.106 The first clearly falls within the ‘general’ extraterritorial obligation, namely when a state exercises authority or effective control.107 This authority or effective control puts the state in question in a position of extraterritorial jurisdiction, irrespective of whether such situation was established in accordance with IL or not.108 The duty of
extraterritorial jurisdiction thus borrows the jurisdictional doctrine of ‘effective control’, originally developed with regard to civil and political rights.109
The second situation concerns actions or the refraining from actions that bring about a ‘foreseeable effect’ on the realization of a right beyond a state’s borders.110 For this type of
situation it is irrelevant whether the action originates from within that country’s own territory or from abroad.111 What however is relevant is whether the respective state authorities knew or should have known that a conduct is likely to bring adverse effects on human rights realization abroad.112 Important is that the state may be capable of influencing the realization of HRs, even in the absence of effective control or authority over a situation or a person.113 These first two categories are thus
102 See, e.g.: CESCR, GC12 (1999).; CESCR GC3 (1990), Annex III, para 86 (1991).
103 Haugen, Hans Morten. "International Obligations and the Right to Food: Clarifying the Potentials and Limitations in Applying a Human Rights Approach When Facing Biofuels Expansion." Journal of Human Rights 11.3 (2012): 405-29, p. 407.; Gibney (2013), p. 36.
104 Gibney (2013), p. 36.
105 See: ETO, Maastricht Principles (2011), principle 9., Schutter et. al. (2012), p. 1109, para. 9. 106 ETO, Maastricht Principles (2011), principle 9.; Schutter et. al. (2012), p.1105, para. 1. 107 ETO, Maastricht Principles (2011), principle 9(a).
108 ETO, Maastricht Principles (2011), principle 9(a).
109 See, e.g: Narula, Smita, “International Financial Institutions, Transnational Cooperations and Duties of States; in Langford, Malcolm. Global justice, state duties: the extraterritorial scope of economic, social, and cultural rights in international law. Cambridge University Press, 2013:114-152, p. 120.
110 ETO, Maastricht Principles (2011), principle 9(b). 111 ETO, Maastricht Principles (2011), principle 9(b). 112 Schutter et. al. (2012) p.1109, para. 8.
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mainly negative duties to abstain from actions that may adversely impact the realization of the respective right – whether acting in effective control or with foreseeable effect.
The third situation in which obligations with an extraterritorial dimension may occur, is when a state is in a position of decisive influence. Namely, acting either separately or jointly, states can influence or take measures towards the realization of ESC-rights abroad.114 This is therefore a
more positive duty encompassing not only the refrainment from actions or measures which would have a negative influence on the enjoyment of rights. Instead, states should also take actions which would have a favorable impact on the realization of rights.115 This third situation of states in a
position to exert decisive influence is the main focus of this thesis, as it refers in particular to the duty of international cooperation and assistance in the fulfilment of ESC-rights.116
3.3LEGAL BASES FOR STATES’EXTRATERRITORIAL HUMAN RIGHTS OBLIGATIONS
By ratifying, or other agreed means such as accepting, approving and acceding to, a human rights treaty, the signatories accept the legal obligation encompassed therein.117 As laid out above, for ESC-rights this entails an obligation to respect, protect and fulfil the enjoyment of the respective HRs.118 These obligations extend beyond borders at least insofar as that the state impacts right-holders human rights enjoyment abroad.119
3.3.1 General Introduction to State’s Human Rights Obligations of International Cooperation A point of departure of international public law regarding extraterritoriality is found in the United Nations Charter. It states already in its first article that one of its aims is to achieve
international cooperation in solving international problems of an economic, social, cultural, or
humanitarian character”.120 Although the UNC refers also to the international cooperation within
the international organization itself - it aims at solving international social and humanitarian problems, as well as the respect for human rights for all. In addition, arts. 55 and 56 UNC, provide another basis of understanding – art. 55 calls for the creation of conditions for a higher standard of living, which, when read in conjunction with art. 56, is to be achieved by international
114 ETO, Maastricht Principles (2011), principle 9(c). 115 ETO, Maastricht Principles (2011), principles 28-35. 116 Schutter et. al. (2012), p.1109, para. 9.
117 VCLT69, arts. 11, 26.
118 See, e.g.: Mégret (2013), p. 101.; Skogly, Sigrun. "Right to Adequate Food: National Implementation and Extraterritorial Obligations." Max Planck Yearbook of United Nations Law Online 11.1 (2007): 339-58, p. 342.
119 Skogly (2007), p. 342.
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operation. It follows, that by implication at least certain states will act with an extraterritorial dimension or impact in order to achieve this aim.121
Moreover, art. 28 of the UDHR, complemented by art. 22, proclaims everyone’s entitlement to ‘a social and international order’ in which HRs can be fully realized. This demonstrates how the enjoyment of HRs is impacted not only by the national context, but importantly also by the international order.122 Namely, ‘social order’ makes reference to the relations within the national context of states, whereas ‘international order’ emphasizes relations between states123 and by
implication the corresponding obligations.124 The commitment to an encouraging international
order for human rights through cooperation has been reiterated in for instance specific treaty law125, the Vienna Declaration and Programme of Action126, the Millennium Development Goal 8127, as well as the Sustainable Development Goal 17.128
3.3.2 State Obligations of International Cooperation under the ICESCR
The ICESCR does not contain a jurisdictional clause and is thereby not explicitly territorially limited, which stands in contrast to for instance art 2(1) of the ICCPR. Instead, the ICESCR addresses the obligation to international cooperation and assistance in its general obligations article.129 Art. 2(1) namely states that to achieve the rights of the Covenant progressively, states have to undertake steps “individually and through international assistance and cooperation, especially economic and technical”.130 The ICESCR thereby confirms that the obligations of implementation go beyond the national territory. 131 It is thus contended that a certain extraterritorial scope was intended by the drafters and is to be seen as part of the signatory states’ treaty obligations.132
121 Skogly (2007), p. 343.
122 Curtis, Josh, and Shane Darcy. "The Right to a Social and International Order for the Realisation of Human Rights: Article 28 of the Universal Declaration and International Cooperation." 2012, in David Keane and Yvonne McDermott (eds.), The Challenge of Human Rights: Past, Present and Future, Edward Elgar Publishing, 2012, p. 4.
123 Ibid., p. 4. 124 Ibid., p. 4.
125 CERD07, art. 32; CAT84, art.9(1); ICPPED06, annex art. 15; CRC, p. 3, annex II art. 10.
126 UN General Assembly, Vienna Declaration and Programme of Action, 12 July 1993, A/CONF.157/23, preamble, para. 34. 127 Schutter et. al. (2012), p. 1095, para. 7.
128 UN Secretary-General, "Progress towards the Sustainable Development Goals", Annual Report, E/2016/75, paras. 13, 117. 129 ICESCR66, art. 2(1).
130 Ibid.
131 Skogly (2007), p. 344.
132 Coomans, Fons, and Menno T. Kamminga. "Some remarks on the extraterritorial application of the International Covenant on Economic, Social and Cultural Rights." Extraterritorial application of human rights treaties (2004): 183-199., p. 185.
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Being a UN treaty, the fact that art. 2(1) included international cooperation could be seen as reflecting the aim for an international order expressed in art. 28 of the UDHR in a legally binding provision.133 It illustrates a recognition that those states with little economic means or little technological advancement would likely not be able to autonomously fulfil their HR duties fully, even when using the maximum of their resources.134 Thus, international cooperation is of utmost
relevance especially to those under-developed and developing countries, which are in necessity of assistance.135
Referring not only to the provisions of the Covenant, but also to arts. 55 and 56 of the UNC - the CESCR importantly notes that “international cooperation for development and thus for the realization of ESC-rights is an obligation of all States”.136 Recognizing the disparate realities amongst signatories the Committee finds that this obligation to international cooperation is especially prevalent upon those states possessing the ability to assist others.137 Those in a position to assist must provide international cooperation both in regard to the core, as well as periphery of a respective right.138 The CESCR further emphasizes that it expects the obligation of international assistance and cooperation to entail an ‘active programme’, if so capable.139 Thus, states with the
required ability must undertake such an active program of international assistance, or else will not be considered to have fully realized the Covenant rights.140
Further important to clarify is that the phrase ‘to the maximum of its available resources’ of art. 2(1) ICESCR was intended to include resources that can be received from the international community through international cooperation and assistance. 141 This thus implies that an ‘inability’ by one signatory state to realize fully ESC-rights on their territory may constitute a violation of their obligations, if they did not seek international cooperation and assistance. The Maastricht Principles confirm that extraterritorial obligations encompasses actively seeking for international assistance as part of the obligation to fulfil ESC-rights in cases of its own inability or incapacity to guarantee those rights within its own state.142 Vice versa, countries capable of doing so have a
133 Curtis and Darcy (2012), p. 24.
134 Ibid., p. 24., see also Skogly, (2006), p. 85. 135 Ibid., p. 85.
136 CESCR, GC3 (1990), para. 14. 137 Ibid., paras. 13, 14.
138 See, e.g.: CESCR, GC14 (2000), para. 45. 139 CESCR, GC3 (1990), para. 14.
140 Ibid., para. 14.
141 Ibid., para. 13.; Limburg Principles (1987), para. 26. 142 ETO, Maastricht Principles (2011), principle 34.
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positive duty to contribute to international cooperation, such as with technical, technological and financial assistance.143It has been further clarified that the concept ‘international assistance and cooperation’ is of a rather broad scope - encompassing not only international development assistance, but also miscellaneous features of foreign policy such as trade relations or financial cooperation.144 This is because actions in these areas relate to the core of the diagonal relationship
- they have the potential of impacting human rights enjoyment in third countries.145
Moreover, art. 23 was incorporated in the ICESCR, addressing examples of methods which are included under ‘international action’ to be used in realization of rights.146 These encompass
amongst others conventions, recommendations and technical assistance, which provides a concrete idea of the type of actions that international cooperation and assistance require.147 The provision further mentions meetings in regions, as well as meetings for technical consolation and study, as part of such envisaged methods.148 Importantly, the ICESCR explicitly acknowledges the extraterritorial role of the member.149GC 12 names art. 23, in conjunction with art. 2(1) ICESCR and art. 56 UNC, in reminding states of the ‘essential role’ of international cooperation and assistance and their obligation to take joint action.150 GC 8 reminds states that economic sanctions should not impact the respect for ESC-rights in those countries.151
According to scholars that analysed the drafting history of the ICESCR and furthermore took into consideration the deliberations of the Committee, found that “it is possible to set out the
legal parameters of international cooperation.”152 Examples provided are that the obligation of international cooperation does not solely require assistance to offset negative effects when states with little means are unjustly affected by the international order.153 Instead, states have a duty to create a just international order, which fundamentally incorporates international cooperation and assistance in its nature.154 Therefore, the distribution and balance of power in the relations between
143 ETO, Maastricht Principles (2011), principles 9 c), 31. 144 Skogly (2007), p. 347.
145 Ibid., p. 347. 146 ICESCR66, art. 23. 147 Ibid., art. 23. 148 Ibid., art. 23.
149 Skogly, Sigrun, and Mark Gibney. "Transnational human rights obligations." Human Rights Quarterly 24.3 (2002): 781-798, p. 11-12.
150 CESCR, GC12 (1999), para. 36. 151 CESCR GC8 (1997), paras. 10-15. 152 Curtis and Darcy (2012), p. 26. 153 Ibid., p. 25.
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states necessarily needs to be analyzed, in order to create such envisaged international order.155 In general, the Limburg Principles clearly state that irrespective of any potential differences, may it be social, political, or economic, states are under an obligation to internationally cooperate with each other.156 In the international cooperation, the realization of all HRs must be a priority, while giving due priority to fulfil the subsistence requirements of all in using the available resources.157
Thus, it can be established that there is a strong legal foundations for the existence of both negative and positive obligations to cooperate and assist.
3.4EXTRATERRITORIAL OBLIGATIONS OF STATES TO RESPECT,PROTECT,FULFIL
State obligations to respect ESC-rights extraterritorially encompasses a general duty that states must both take actions individually and jointly by engaging in international cooperation.158 This includes that states may not directly interfere with the enjoyment of ESC-rights of right-holders that are situated beyond national borders.159 Also conduct of indirect interference is prohibited, such as impairing the compliance of another state or international organization (IO) with ESC-rights, or by ways of aiding, assisting, directing, controlling or coercing in the breach of another states or IOs ESC-rights.160 Moreover states must not adopt sanctions or equivalent measures, which would negatively affect the enjoyment of ESC-rights, and instead ensure the full respect when planning and implementing sanctions.161
State’s obligations to protect ESC-rights extraterritorially entail a general necessity to take action separately and through international cooperation, which includes the adoption of (legal) safeguards.162 States also must regulate non-state actors, such as individuals, companies or IOs, so that they do not impair ESC-rights.163 This includes among others taking measures of
‘administrative, legislative, investigative, adjudicatory’ nature.164 Additionally, states in a position
of influencing conduct of non-state actors should do so towards the protection of ESC-rights.165
155 Ibid., p. 26.
156 Limburg Principles (1987), para. 31. 157 Ibid., paras. 28-29.
158 ETO, Maastricht Principles (2011), principle 19. 159 Ibid., principle 20.
160 Ibid., principle 21 a), b). 161 Ibid., principle 22. 162 Ibid., principle 23. 163 Ibid., principle 24. 164 Ibid., principle 24. 165 Ibid., principle 26.
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This duty of protection exists when a state possesses influence such as through means of diplomacy, even if it lacks the ability to actually regulate the respective conduct.166
State’s obligations to fulfill ESC-rights are positive, based on the general obligation to take joint and separate action.167 The obligations to fulfil particularly encompasses the third type of situation of extraterritorial ESC obligations, namely the obligations of international cooperation and assistance as under art.2(1) of the Covenant.168 Closely aligned with the wording of art. 56 UNC, extraterritorial obligations to fulfil entail the creation of an international enabling environment and the sharing of capacities and resources.169 In doing so, states must take ‘deliberate,
concrete and targeted steps’ both individually and in cooperation.170 This duty includes addressing
matters, inter alia, from trade to the environment, such as trade agreements and foreign relations policy.171 Moreover, states must separately and jointly contribute to the fulfilment of ESC-rights beyond their territory, such as with technical, technological and financial assistance.172 There are furthermore obligations of prioritization in fulfilling ESC-rights for the disadvantaged, marginalized, and vulnerable groups, the core of the rights, the observation of IHR standards and the avoidance of retrogressive measures.173 Interestingly, states are under obligation to seek international assistance and cooperation in cases of its inability or incapacity to guarantee ESC-rights within its own state.174 Accordingly, states to whom such request for international assistance or cooperation is directed towards, are under an obligation to ‘consider the request in good faith, and respond in a manner consistent with their obligation to fulfil ESC-rights extraterritorially’. 175 In considering requests states must take into account the obligations, laid out above, to contribute available resources and must do so with their obligations of prioritization.176
166 Ibid., principle 26.
167 Ibid., principle 28
168 Ibid., principle 28; Schutter et. al. (2012), p. 1109, para. 9, p. 1145, para. 1.
169 ETO, Maastricht Principles (2011), principle 28.; Schutter et. al. (2012), p. 1145, para. 1. 170 ETO, Maastricht Principles (2011), principle 29.
171 Ibid., principle 29. 172 Ibid., principle 31. 173 Ibid., principle 32 a)-d). 174 Ibid., principle 34. 175 Ibid., principle 35. 176 Ibid., principle 35.
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4.1INTRODUCTION
In the era of globalization and ever increasing integration, measures taken by one state cannot be perceived in isolation anymore and in fact may carry significant impact in another, or on another state’s possibility to fulfil their obligations of realizing the right to food.177
The legal basis of the right to food is multifold. Under the general framework of international HR instruments, the right can be found in several sources, such as in art. 25(1) of the UDHR, which recognizes the human right to food in the context of the right to an adequate standard of living in terms of health and well-being.178 Furthermore, the right to food is articulated, recognized or reaffirmed in several other binding instruments, such as in the ICESCR, the CRC179 and the CEDAW180, as well as a number of regional HR instruments. Many of these have a large number of ratifications, demonstrating a widespread codification of the right to food and a general international recognition.181
In addition, there are a number of non-binding instruments of importance in interpreting the right to food and laying out guidelines thereto , amongst others including the 1974 Universal Declaration on the Eradication of Hunger and Malnutrition182, the 1996 Rome Declaration on World Food Security183 and the 2004 Voluntary Guidelines to support the progressive realization of the right to adequate food in the context of national food security.184
Moreover, the right to food is interrelated with other human rights, due to their inherent character of being ‘universal, indivisible and interdependent’. 185 The right to food is
multidimensional in nature and therefore has close links to other rights by way of logic alone, such
177 See, e.g.: (2007), p. 350.
178 UDHR48, art. 25. 179 CRC89, arts. 24, 25, 27. 180 CEDAW79, arts. 12, 14.
181 Mechlem, Kerstin. 2004. Food security and the right to food in the discourse of the United Nations. European Law Journal 10(5): 631–648., p. 638-239
182 UN General Assembly, World Food Conference, 17 December 1974, A/RES/3348.
183 Food and Agriculture Organization of the United Nations (FAO), The Rome Declaration on World Food Security and the World
Food Summit Plan of Action, Rome, Italy, November 13, 1996.
184 Food and Agriculture Organization of the United Nations (FAO), Voluntary Guidelines to support the progressive realization of the right to adequate food in the context of national food security, adopted by the 127th Session of the FAO Council, November 2004.
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as the right to life, to water, to property, and to health and even to the right to work and fair remuneration.186
4.2THE RIGHT TO FOOD UNDER THE ICESCR:ARTICLE 11 AND ITS NORMATIVE CONTENT
The International Covenant on Economic, Social and Cultural Rights deals more comprehensively with this right than any other instrument.187 The right to food is present in the ICESCR in two separate but related norms.188 Art. 11 lays out the following:
1. The States Parties to the present Covenant 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. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international cooperation
based on free consent.
2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international
co-operation, 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.189
The first, the right to adequate food, is a considerably broader concept than the right to freedom from hunger, as it entails the need to establish conditions which enable the achievement of autonomous food security for right-holders.190 The Special Rapporteur on the right to food used a more elaborate definition, also been used by some scholars191, which he based on art. 11 and the corresponding CESCR comment:
“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
186 See, e.g.: Food and Agriculture Organization of the United Nations (FAO), The right to food within the international framework of human rights and country constitutions, Rome, 2014, p.7.
187 CESCR, GC12 (1999), para. 1.
188 See, e.g.: Alston (1984): 9-68; Randolph, Susan, and Shareen Hertel. "The right to food: a global overview.", in Minkler, Lanse. The state of economic and social human rights: a global overview. Cambridge University Press, 2013.: 21-60. p. 3. 189 ICESCR66, art. 11. [emphasis added]
190 FAO (2014), p. 4.
191 See, e.g.: Eide, A., Right to Adequate Food as A Human Right Human Rights Study Series No. 1, United Nations publication (Sales No. E.89.XIV.2), New York, United Nations, (1989), para. 14, p. 7.
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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.”192
The CESCR stated that the ‘core content’ of the right to food is twofold and entails for one that the quantity and quality must be appropriate to fulfil dietary needs, as well as be culturally acceptable and secondly that the food must be accessible in a sustainable manner.193 Hence, there are several concepts important to understanding the normative content of the right to food.194
Adequacy underlines several factors that must be assessed when determining the
appropriateness of foods or diets in their respective context for the purpose of realizing art. 11.195 However, regarding the normative content of the right to food, there is no uniformly accepted definition of what the notion of ‘adequacy’ entails. 196 This is due to the fact that the right to food logically entails for instance social and cultural connotations.197 That is, to be ‘adequate’, food is required to be accessible, sufficient and acceptable in a manner that fulfills cultural or consumer standards and is broadly conform with social norms.198 From this it follows that adequacy of food must be interpreted in light of both its physiological and social utilization.199 Importantly, the right to adequate food is not satisfied with a minimum package of calories or specific nutrients.200 Instead, adequacy is not based on availability, but on the respective ‘social, economic, cultural, climatic, ecological and other conditions’.201
Sustainability is a notion interrelated to that of ‘adequacy’ or ‘food security’, and concerns
the aim that food should be accessible both for present, as well as future generations.202 Sustainability furthermore encompasses the notions of long-term availability and accessibility.203
192 UN Commission on Human Rights, Report by the Special Rapporteur on the Right to Food, 7 February 2001, E/CN.4/2001/53, para. 14, p. 7.; 193 CESCR, GC12 (1999), para. 8. 194 Ibid., paras. 7, 12-13. 195 Ibid., para. 7. 196 Ibid., para. 7. 197 Ibid., para. 7. 198 Ibid., para. 11.
199 Randolph and Hertel (2013), p. 4. 200 CESCR, GC12 (1999), paras. 6, 14. 201 Ibid., para. 7.
202 Ibid., para. 7. 203 Ibid., para. 7.
