The right to food has been recognized since the adoption of the Universal Declaration of Human Rights in 1948. But what does it imply? And how can it be realized? These are among the questions likely to arise during debate on a code of conduct concerning the right to food at the World Food Summit: five years later. It takes place 10-13 June at FAO headquarters in Rome.

The International Code of Conduct on the Human Right to Adequate Food was first proposed in the run-up to the World Food Summit in 1996. It has widespread support among non-governmental organizations who advocate on behalf of the hungry.

Now states are being called upon by these NGOs to start intergovernmental negotiations on the Code of Conduct, which would provide guidance on the implementation of the right to food. The Code would not create new rights or obligations -- these already exist under international law; it would focus instead on the actual steps countries could take to ensure that their policies and legislation respect, protect and fulfil the right to food of everyone.

The right to food is written into the constitutions of over 20 countries, and about 145 countries have ratified the 1966 International Covenant on Economic, Social and Cultural Rights, which explicitly requires signatory states to legislate for the right to adequate nutrition. But the Code is likely to run into opposition because of sticky issues like these:

  • What –- if anything -- does the right to food oblige states to do for their people?

  • To what extent can it ever be realized? Is it enforceable in law?

The road from Magna Carta

In human rights theory, there are two types of human rights -- those respected simply through non-intervention, such as the right to worship, and those that require resources in order to be realized. Some question whether the latter are rights at all. So there is a sharp distinction between a narrow interpretation -- the right to obtain food unhindered through one’s own efforts -- and a broad interpretation -- the right to be supplied with food when one cannot obtain it.

The narrow interpretation is not new. England’s Magna Carta of 1215 states that no one shall be ‘amerced’ (fined) to the extent that they are deprived of their means of living.

The broad interpretation guarantees adequate nutrition when work or land are not available and therefore implies the use of resources to feed people. A number of governments do not accept this interpretation. Indeed, some have argued that spending time and money to promote the right to food wastes resources better spent on the poor.

But regarding food security as a right helps focus on the crucial issues of accountability and nondiscrimination, which also have their foundations in human rights law. In sum, the right to food is all about good governance and attention to the poorest and the most marginalized.

Jean Ziegler, the United Nations Special Rapporteur on the Right to Food, questions the whole distinction between abstract freedoms and those that require resources. "Even implementing civil and political rights does in fact imply resources," he has written. "The cost of setting up and training the police force, military and judiciary to implement international human rights law is not insignificant."

Even under a narrow interpretation of the right to food, governments must maintain an environment in which people can feed themselves. "People have a responsibility to obtain their food, so you can’t automatically blame the state for malnutrition," says FAO legal officer Margret Vidar. "But the state can be responsible for a circumstance that causes it." For example, people must have adequate wages or access to land to buy or grow food, she points out. Unfair monopolies must not distort food markets or seed supply. "The state must ensure fair play, or it could be violating the right to food," she adds.

See you in court…

The International Covenant on Economic, Social and Cultural Rights goes further, saying that states must do everything possible to ensure adequate nutrition -- and legislate to that effect. But hungry citizens can’t prosecute their government under the Covenant, only under their country’s own laws. If a country never passed any such laws, it has violated the Covenant, but the citizen has no redress.

The United Nations monitors implementation of the Covenant through its Committee on Economic, Social and Cultural Rights, which is serviced by the Office of the High Commissioner for Human Rights. In 1999, the Committee insisted that countries should pass laws protecting the right to food.

Would this work? Jean Ziegler has quoted examples where it has. For example:

  • Economic, social and cultural rights, including the right to food, are constitutionally guaranteed in South Africa. In a landmark legal case, Government of the Republic of South Africa v. Irene Grootboom and others, the court ruled that the Government had violated the Constitution by not making ‘reasonable’ provision for persons in desperate need. (That case concerned housing, but the right to food enjoys a similar constitutional protection -- so the finding is considered relevant).

  • In 2001 in the Supreme Court of India, NGOs successfully forced public corporations and state governments to accept responsibility for malnutrition.

"It’s hard for the starving to sue," says Ms Vidar. "But NGOs and other bodies can use the law in order to protect the poor. So let the Covenant on Economic, Social and Cultural Rights, or its equivalent, be written into national law, whether we adopt the Code of Conduct or not. The law can be the bridge between the hungry and the food they need."