Defining Violations: Immediate Obligations versus Progressive Realization
The right to adequate food, like other human rights, corresponds to three levels of obligations: the obligation to respect, to protect and to fulfill (which, in turn, embraces the obligations to facilitate and to provide). (122) This shows that the traditional categorization of civil and political rights as negative rights, and socioeconomic rights as positive entitlements, is arbitrary, even misleading. (123) Liberty-oriented civil and political rights or the so-called "first generation rights" are often considered "negative rights," while socioeconomic rights, or "second generation rights," are regarded as "positive entitlements." (124) Such categorization, however, conceals the fact that civil and political rights also entail positive entitlements (say, protection), while socioeconomic rights primarily impose negative obligations. (125) If, say, the right to food is primarily about feeding oneself in dignity, the principal obligation corresponding to it is negative--the obligation to respect. Accordingly, the right to food is violated if, for example, a state impedes an individual's access to her means of subsistence. (126) The obligation to protect, on the other hand, requires states to take positive measures to ensure that the enjoyment of the right is not impeded by third parties. (127) Failure to protect individuals from arbitrary dismissal by private employers may thus amount to a violation of the right to food. (128) "The obligation to fulfill (facilitate) means the State must pro-actively engage in activities intended to strengthen people's access to and utilization of resources and means to ensure their livelihood, including food security." (129) In this case, a violation of the right to food occurs if a state, for example, fails to endeavor to improve methods of food production and distribution. (130) These three obligations are immediate and more or less apply to all kinds of human rights. (131) In all of these situations, the right holder provides her own food; the state has just to respect, provide protection from third party threats, and ensure enabling socioeconomic and political environment for the enjoyment of the right. However, whenever individuals are unable, "for reasons beyond their control, to enjoy the right to adequate food by the means at their disposal, States have the obligation to fulfill (provide) that right directly." (132) In this case, violation of the right to food occurs when individuals or groups simply starve (involuntarily) and the state fails to provide them with food. That is why hunger constitutes a prima facie violation of the right to food. (133)
Failure to meet any of the above obligations constitutes a violation of the right to food unless the state concerned proves that it has made every effort to meet its obligations. (134) The burden of proof lies on the state, and it is heavy. A state must prove not only the lack of sufficient food grain in its granary or funds in its coffers, but also that "it has unsuccessfully sought to obtain international support to ensure the availability and accessibility of the necessary food." (135) Of course, this is not the easiest thing to do. First, even in countries where hunger is rampant, there is usually surplus food. (136) Second, even though states are obliged under the Covenant to devote available resources to the realization of socioeconomic rights, (137) most
States, including some of the most food-insecure ones, devote a shocking proportion of their GDP rather for military purposes. (138)
The three obligations above apply at the international level, as well. (139) International obligations, with respect to the realization of the right to food, are not primarily about food transfers. The obligations call primarily for suitable international socioeconomic order and cooperation structures, as sanctioned by the U.N. Charter, the UDHR, ICESCR, and other instruments. (140) In regards to the fundamental right to be free from hunger, Article 11.2 of the ICESCR is explicit that States shall take necessary measures, individually and collectively, including cooperating in improving methods of food production and disseminating technical and scientific knowledge, as well as ensuring equitable distribution of food. (141) In reality, of course, international cooperation involving meaningful transfer of agricultural technology is virtually nonexistent. In fact, monopolizing scientific knowledge is the norm. Thus, in as much as overproduction and surplus disposal has become a problem for some industrialized nations, underproduction associated with lack of agricultural technology remains a perennial problem in poor nations. That agricultural labor productivity in "the least developed countries" (LCDs) is less than one percent that of developed nations explains it all. (142)
Justiciability of the Right to Food
Underlying the classical dichotomy between civil and political rights on the one hand and socioeconomic rights on the other is the unwarranted assumption that rights under the latter category are not justiciable. Such claims must now be laid to rest. First, the two categories of rights are inextricably interdependent. As regards those who are agonizing from starvation, freedom of speech or assembly is a hollow, if not fraudulent, rhetoric. (143) Second, the assumption that civil and political rights correspond to negative obligations, while socioeconomic rights impose positive obligations is fallacious. As noted above, the right to food imposes the obligation to respect in much the same way as freedom of expression does. All human rights impose negative as well as affirmative obligations. (144) Finally, such an assumption flies in the face of the steady, albeit slow, jurisprudence at national, regional, and international levels, evidencing that violations of socioeconomic rights are amenable to judicial determination. (145)
Court cases on the subject are extremely limited, even though the right to food is probably violated more comprehensively than any other right. (146) Still, there are some striking precedents, both at national and international levels, reaffirming the justiciability of the right. In South Africa, the justiciability of socioeconomic rights is beyond question. In the so-called Nevirapine case, the Constitutional Court left no doubts when it declared: "The question ... is not whether socio-economic rights are justiciable. Clearly they are. (147) The Indian Supreme Court has likewise affirmed a constitutional right to food even in the absence of explicit reference in the text of the constitution. (148) In a similar vein, the Swiss Federal Court has affirmed a right to minimum conditions of life; including "the guarantee of all basic human needs, such as food ... to protect people from being reduced to beggars, which the court deemed "a condition unworthy of being called human." (149) Interestingly, the case was brought by illegal immigrants. (150) Yet, the court still held that they nonetheless have an inherent right to food. (151)
The justiciability of the right to food has also been affirmed, albeit somewhat indirectly, by the International Court of Justice (ICJ). In the Israel Wall case, the ICJ concluded that, by curtailing the freedom of movement of the inhabitants (i.e. Palestinians), the construction of the wall by the state of Israel violates, among others, the right to adequate standard of living as proclaimed under the ICESCR and other instruments. (152) Unarguably, the right to food is central to the right to adequate standard of living under the ICESCR. The interdependence between socioeconomic rights and liberty-oriented rights (freedom of movement in this case) is at the heart of this case. This should be a final answer to those who contend that socioeconomic rights impose only progressively realizable positive obligations. (153)
In a pending case before the ICJ, Ecuador alleges that an "aerial spraying of toxic herbicides" by Colombia in areas bordering the two countries violates the right to food and health of its people living in the area, among others. (154) Traditionally, extraterritorial obligations to the right to food are seen in terms of what a state is obliged to do towards people outside of its borders. The outcome of this case should be interesting, as it concerns what a state should refrain from doing vis-a-vis the right to food of people outside of its territories. It would also be significant in our understanding of the impact of transboundary environmental damages on the right to food.
In sum, the right to food is a justiciable legal right. Yet, hunger is widely considered just as a cruel fact of life, not a flagrant human right violation that shall be accounted for. This is attributable mainly to the longstanding ideological bias against socioeconomic rights in general and the right to food in particular. (155) With such ideological bias coupled with the lack of concrete accountability structures, what remains is a paradigmatic problem of human rights in general and socioeconomic rights in particular, which ensures that the right to food remains one of the most neglected human rights. Although the right to food is a legal right under positive international law, it has practically been neglected so completely that the adoption of Voluntary Guidelines by the FAO Council is now considered as groundbreaking. (156) An apparent lack of
clarity, particularly with regard to the precise obligations correlating to the right to food, seems to have contributed to the problem. Thus, it is next in order to explore the normative content of the right to food and what definite obligations it correlates to.
REINTERPRETING THE RIGHT TO FOOD
The right to food actually refers to two distinct rights entrenched under Article 11 of the ICESCR. (157) The first one is the right to adequate food, which is subsumed...
Hunger and the law: freedom from hunger as a freestanding right.
|Author:||Yigzaw, Destaw A.|
|Position:||Continuation of III. The Right to Food and the Politics of Hunger B. Hunger Is a Human Right Violation through VI. Conclusion, with footnotes, p. 684-714|
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