ANNEX ONE
The right to adequate food and the right to water

The legal basis of the right to adequate food and the right to water

The right to adequate food and the right to water are human rights. Their most prominent legal basis is Art. 11 of the International Covenant on Economic, Social and Cultural Rights that enshrines the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing. The Covenant is legally binding upon those 146 States that ratified it. As the right to adequate food and the right to water are also recognized in a large number of other binding and non-binding legal instruments they are arguably part of customary international law as well.

The compliance of State Parties with the Covenant is monitored by the Committee on Economic, Social and Cultural Rights, the treaty body of the Covenant consisting of 18 independent experts. The Committee adopts “General Comments” constituting authoritative interpretations of the provisions of the Covenant to clarify the normative content of the rights, States parties' and other actors' obligations, violations and implementation of the rights at the national level.

The right to adequate food

In 1999 the Committee adopted General Comment 12 on the right to adequate food. It is the right of everyone to have physical and economic access to adequate food or the means for its procurement. Its core content implies the 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 the accessibility of such food in ways that are sustainable and do not interfere with the enjoyment of other human rights.

Availability refers to the possibilities of either feeding oneself directly from productive land or other natural resources, or having means for its procurement through well functioning distribution, processing and market systems. Accessibility encompasses both economic and physical accessibility.

Sustainable access to water resources for agriculture must be ensured in order to realize the right to food.¹ Attention should be given to ensuring that disadvantaged and marginalized farmers, including women farmers, have equitable access to water and water management systems, including sustainable rain harvesting and irrigation technology. As the Covenant also provides that “a people may not be deprived of its own means of subsistence” (Art. 1 (2)) it must also be ensured that there is adequate access to water for subsistence farming and for securing the livelihoods of indigenous peoples.

The right to water

In 2002 the Committee adopted General Comment 15 on the right to water (Art. 11 and 12 of the Covenant). General Comment 15 was the first document that fleshed out in detail the right's content and clearly stated that the right to water emanated from and was indispensable for an adequate standard of living as it is one of the most fundamental conditions for survival. The right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic use. Availability implies that the water supply for each person must be sufficient and continuous for drinking, personal sanitation, washing of clothes, food preparation, personal and household hygiene. It must be free from micro-organisms, chemical substances and radiological hazards that constitute a threat to a person's health. Water and water facilities and services have to be physically and economically accessible to everyone without discrimination.

Water is also necessary to realize a number of other rights. Water use to ensure environmental hygiene is covered by the right to health. Water necessary for the enjoyment of certain cultural practices is protected by the right to take part in cultural life. The right to gain a living by work encompasses water for securing livelihoods. Finally, as mentioned above, water to produce food is necessary to realize the right to adequate food. In case of competing uses priority in allocation must be given to the right to water for personal and domestic use as well as to the prevention of starvation and disease.

States' obligations

The right to adequate food and the right to water pose on States obligations of progressive realization as well as immediate obligations. The principle obligation of States with respect to the right to adequate food and the right to water is the obligation to take steps to achieve progressively the full realization of both rights. States must move as expeditiously and effectively as possible within the limits of the maximum of their available resources towards this goal. While full realization might take time, steps must be taken immediately. Also of immediate effect is the obligation to ensure that the rights can be exercised on a non-discriminatory basis.

States must respect, protect and fulfil the right to adequate food and the right to water. The obligation to respect requires that states refrain from interfering directly or indirectly with the enjoyment of the rights. They must refrain from engaging in any practice or activity that denies or limits access to food or water or interferes arbitrarily with existing arrangements, e.g. by unlawful excessive abstraction of water by the state. The obligation to protect requires states to take measures to ensure that third parties such as individuals, groups, corporations or other entities do not interfere in any way with the enjoyment of the rights, e.g., by adopting the necessary, effective and enforced legislative and other measures to control and restrain third parties' activities such as pollution control measures. The obligation to fulfil means that States must take positive measures to facilitate individuals' enjoyment of their rights through the development of strategies, policies and legislative measures, to promote the rights by appropriate education concerning for example the protection of water resources and methods to minimize its waste and, finally, to provide for the fulfilment of the rights directly in those cases in which individuals are unable for reasons beyond their control to realize the rights themselves (e.g. orphaned children).

Outlook

Although a large number of individuals all over the world continue to be denied their rights to adequate food and water, some encouraging developments are taking place. More and more countries and international agencies adopt rights-based policies and approaches that incorporate, for example in food security strategies, mechanisms of accountability, the principles of non-discrimination, equality and participation and the interdependence of rights. An increasing number of states explicitly or implicitly recognize the two rights in their constitutions or legal frameworks and endeavour to implement the rights comprehensively through the development of new sets of measures. Some have made the rights justiciable. Furthermore, FAO and UN Member States are currently developing within the framework of an Intergovernmental Working Group established by the FAO Council in October 2002 a set of Voluntary Guidelines for the progressive realization of the right to adequate food in the context of national food security.

References

Committee on Economic, Social and Cultural Rights, General Comment No. 12. 1999. The Right to Adequate Food, E/C.12/1999/5 (12 May 1999), available at: http://www.unhchr.ch/tbs/doc.nsf/(symbol)/E.C.12.1999.5,+CESCR+General+comment+12.En?OpenDocument

Committee on Economic, Social and Cultural Rights, General Comment No. 15. 2002. The Right to Water, E/C.12/2002/11 (26 November 2002), available at: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/E.C.12.2002.11.En?Opendocument

¹ This aspect of the right to adequate food is dealt with mainly in the introduction to General Comment 15 on the Right to water.