The right to food is mentioned in several binding as well as non-binding international agreements. One of the most notable non-binding agreements is the FAO’s Voluntary Guidelines, which is just what other non-binding instruments are – voluntary. Other agreements, such as the International Covenant on Economic Social and Cultural Rights (ICESCR) are little more than voluntary themselves despite being labelled as binding. Here, it will be explored whether nations are actually bound to realize the right to food for the sake of food security.
Focusing on ICESCR, where the right is enshrined in Article 11, 169 countries have ratified it which means they have agreed with the instrument and are actively undertaking to meet its aims. On the other hand, 24 countries have taken no action at all and 4 countries have signed the agreement but not ratified it, including the USA. When ICESCR was drafted, economic and social rights were seen as being subject only to progressive realisation and could not be enforced in the same way as civil and political rights. In certain countries including India, this led to the right to food only being included as a principle of state policy rather than as a fundamental right. However an increasing number of countries are framing them as fundamental and enforceable in their constitutions such as Bolivia, Guyana and Ecuador.
Food Security vs Right to Food
India’s outlook resembled a food security stance, which is a policy objective, rather than the realisation of the right to food, which is a legally binding obligation. By adopting a human rights framework, the other countries facilitated the transfer of food issues from the technical and academic arenas to the more powerful political agenda where they find themselves obligated.
What’s more, definitions of food security take no stance on discrimination whereas human rights law forbids it in order to realise equal enjoyment and exercise of the right to food. In this sense, access to adequate food will apply equally to everyone under the right, ensuring universal security, whereas it would not under ordinary food security policy. The right to food is much more than a tool to obtain food security: it sets minimum requirements which place obligations on governments whereas they could choose how they acted under food security policy.
ICESCR puts 3 types of obligation on countries. The first is respect, a negative obligation that requires them to refrain from any measure that will prevent access to food. Secondly, the obligation to protect means countries must ensure that the actions of third parties do not deprive individuals of access to food. Finally, countries are obligated to fulfil the right which means they must facilitate or provide access to adequate food.
The primary obligation is for national governments to ensure the right to food for their own citizens but the Special Rapporteur on the Right to Food has noted that governments also have obligations to respect, protect and facilitate the right to food that extend outside of their own borders. This means that governments cannot place trade embargos on other countries for example which may jeopardise the food security for those populations.
Unfortunately the actions of governments are not always consistent with their obligations but this is not seen as contradicting the validity of human rights principles. Rather it is seen as a need to be more effective with measures of accountability to ensure consistency.
Accountability and enforceability of ICESCR was elaborated on in General Comment 12 and the Special Rapporteur further clarified how the right is to be enforced in different situations. One of the arguments for keeping human rights application flexible is the need for them to be capable of application in diverse situations in manners not limited to courts and tribunals. For example, accountability can be realised through monitoring, reporting, public debate and greater citizen participation. Governments recognise their accountability simply by acknowledging food as a fundamental human right because they empower their citizens to insist that the right be enforced. Unfortunately, direct accountability under international human rights law remains relatively limited regarding responsibilities of third parties because of lack of transparency.
Even those countries that have not ratified themselves to the obligations may still have responsibilities that are addressed in customary law. These are international practices that have been identified as norms among the international community. Therefore, if it has been recognised as normative to have, and act in accordance with, a right to food, countries such as the USA will be bound to do so even if they have not ratified ICESCR. However, custom is a very fluid source of law which is uncertain and lacks authoritative guidance because its content is not fixed. Food security cannot be assumed to be universally protected on the basis of unstable customary law.
The move to the rights framework from food security brings an entitlement on the part of the citizen, an obligation on the part of the country, and an ability to sue the government. The entitlement and ability to sue makes countries accountable and bound by public opinion. The obligations however, are limited to citizens in their jurisdiction and the countries who sign but do not ratify ICESCR can escape them altogether. To effectively realise the full impact of the right to food, the accountability of global actors needs to be better defined so as not to undermine these obligations.
Another issue is that implementation of ICESCR is not immediate so countries can just commit to working towards the progressive implementation of a right to food. No matter what is said about the quality of the legal instrument, ICESCR is still hard law and, by definition is binding upon its ratification. The problems therefore lie in weaknesses of implementation, enforcement and lack of universal ratification. Only when these issues are solved will the right to food provide universal food security.