International Obligations and the Right to Food: Clarifying the Potentials and Limitations in Applying a Human Rights Approach When Facing Biofuels Expansion

Abstract

Despite an enhanced emphasis on the human right to adequate food in the last decade, this has not had a measurable effect on the number of undernourished persons around the world. Rather, the number of hungry persons has increased from 800 million in 1996 (the year of the World Food Summit) to more than 925 million today. Acknowledging that enough food is produced globally to enable everyone to have an adequate food intake, the article analyzes the international dimensions of the right to food as recognized in the International Covenant on Economic, Social and Cultural Rights (ICESCR), particularly the international obligations that can be read out from the relevant provisions. The ICESCR recognizes the right to food by applying strong wording, and some of its provisions have not been adequately observed in order to provide for alternative policies. It is the lack of political will of the States which explains the increase in the number of hungry persons globally, not the human rights system per se. Moreover, the ICESCR is not formulated in a manner which provides for a substantive overhaul of the international economic system, even if the States must change their conduct to comply with the ICESCR.

Notes

¹The two other provisions which refer to international cooperation do so by applying a wording that is not as directing as ICESCR Article 11.2, namely ICESCR Article 11.1 (“recognizing to this effect the essential importance of international co-operation based on free consent”) and ICESCR Article 15.4 (“recognize the benefits to be derived from the encouragement and development of international contacts and co-operation”).

²There is no international agreement on what constitutes human rights principles, but FAO (2007: 2) lists the following: participation, accountability, nondiscrimination, transparency, human dignity, empowerment, and the rule of law. This list is more comprehensive than the list included in the Common Understanding (United Nations Development Group [UNDG] 2003: 2), and the latter includes terms which arguably are not human rights principles but which describe the nature of human rights (universality and inalienability; indivisibility; interdependence, and interrelatedness). This article will not analyze each of these human rights principles, but the article is built on the premise that, if observed appropriately, human rights principles will improve the conduct of public policy.

³Such concerns are valid in light of the attempt of introducing a declaration on human responsibilities, see Human Rights and Human Responsibilities Final report of the Special Rapporteur, E/CN.4/2003/105 (UN Special Rapporteur on Human Rights and Human Responsibilities 2003). The proposal met with harsh criticism, with states saying that the declaration “is contrary to the principles on which the international human rights system is built” (UN 2005b: para. 3) and “would undermine the fundamental role of the states in safeguarding and guaranteeing the rights of all individuals” (UN 2005b: para. 11). In a 2005 decision in the Commission on Human Rights, a mandate was given—with 26 against 25 votes—to prepare “a new initial version of the pre-draft declaration on human social responsibilities”; see Human Rights and Human Responsibilities, E/CN.4/DEC/2005/111 (UN 2005c), but this mandate was not continued. The special procedures were recognized at the last session of the Commission on Human Rights in 2006; see Conclusions and Recommendations of Special Procedures, Report of the Secretary –General, E/CN.4/2006/99.

⁴Human Rights Committee (2004: para. 10), General Comment No. 31, CCPR/C/21/Rev.1/Add.13: Nature of the General Legal Obligation Imposed on States Parties to the Covenant. See also Coard (Case 10.951, Report No 109/99) and Armando Alejandre Jr. and others vs. Cuba (Case 11.589, Report No 86/99), both determined by the Inter-American Commission on Human Rights 29 September 1999, analyzed in Skogly (2006: 183–185). On “authority and control,” see O’Boyle (2004: 128). Extraterritoriality is about “jurisdiction over individuals and actions” (see Skogly and Gibney 2010: 5). The following example illustrates the difference between “jurisdiction” and “control”: Even if the Palestinian Authorities (PA) exercise authority in both civilian and security matters in the “A areas” of the West Bank, hence giving the PA jurisdiction in these cities, the web of Israeli check points and other means of control, including regular military incursions into these areas, implies that Israel has the effective control in the whole of the West Bank.

⁵These arguments came in the context of the negotiations of Article 14.1 and 14.2 in what became the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, A/RES/63/117, Annex (UN 2008). Arguments that international obligations are merely moral obligations were put forth in Paragraph 76 in the report from the second session (UN 2005d) and in Paragraph 82 in the report from the third session (UN 2006). Arguments that international obligations are legal obligations, since they are recognized as such in the ICESCR, were put forth in Paragraph 78 in the report of the third session (UN 2006) and Paragraph 164 in the report of the fourth session (UN 2007). The distinction between moral and legal obligations is somewhat parallel to Kant's distinction between imperfect and perfect duties. A general distinction between the two is that under perfect duties, the prohibition is absolute, and the maxim of the action can be universalized. This is precisely the core of human rights, as human rights are universal, hence setting a standard that applies to every human being. For a reference to charity and rescue as “imperfect duties,” see Hodgson (2003: 33).

⁶Title 28 § 1350 of the US Code reads: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” A study in 2006 found that, of 36 corporate cases brought before US courts under the Act, 20 had been dismissed, 13 were ongoing, and 3 had been solved by a settlement (Baue 2006). There are no examples of a company that has lost a case under the Alien Tort Claims Act—and only one example of a company that has won; see Estate of Rodriguez v. Drummond Co., 256 F. Supp. 2d 1250, where Drummond in 2007 was found not to be liable for the murder of three trade union leaders in Colombia). For some analyses on the Alien Tort Claims Act, see Betton (2008), Cassel (2008), Skinner (2008), and Deva (2012); for analyses specifically on Doe et al. v. Unocal, 395 F.3d 932 (9th cir) (2002), which was solved by settlement in 2005, see Clapham (2006: 252) and Wilson (2006). The most recent cases which have been settled are Shi Tao and Wang Xiaoning v. Yahoo!, settled November 13, 2007; and Wiwa et al. v. Royal Dutch Petroleum et al., settled June 8, 2009.

⁷Doe et al. v. Unocal, 395 F.3d 932 (9th cir) (2002).

⁸Sosa v. Alvarez-Machain et al., 542 U.S. 692 (2004) section C.

⁹Marcus (2003), analyzing in addition to human rights treaties both the Genocide Convention (Article 2[c]), the IV Geneva Convention (Article 55), the two Additional Protocols to the Geneva Convention (Articles 54 and 14, respectively), rulings from the International Criminal Tribunal for Rwanda (Kayishema, ICTR-95–1-T, Paragraph 116), and the Statutes of the International Criminal Court (Article 8[2][b][xxv]), referring to intentional use of starvation and using food as a means of warfare.

¹⁰UN doc. A/C.3/SR.1268, 294, Paragraphs 18–22 (1963).

¹¹HR 2419, Food, Conservation and Energy Act, Public Law 110–246.

Additional information

Notes on contributors

Hans Morten Haugen

Hans Morten Haugen is an Associate Professor at Diakonhjemmet University College in Oslo, Norway. In 2006, he was awarded a PhD Degree in Law at the University of Oslo. His dissertation has been published by Martinus Nijhoff Publishers in 2007 as The Right to Food and the TRIPS Agreement–With a Particular Emphasis on Developing Countries’ Measures for Food Production and Distribution (Raoul Wallenberg Institute Human Rights Library Vol. 30).