The Evolution of the Right to Food in the Human Rights Paradigm

Transcription

1 The Evolution of the Right to Food in the Human Rights Paradigm Human rights in the context of globalization B. Kierkels

2 The Evolution of the Right to Food in the Human Rights Paradigm Human rights in the context of globalization Document Type: Thesis Supervision: Course Number: Master Thesis Law and Governance Group LAW Author Name: B. Kierkels Institute: Wageningen University and Research Centre Education: MSc International Development Studies Registration Number: Contact: Supervision Name: Institute: Contact: Dr. Ir. O. Hospes Wageningen University and Research Centre Department of Social Sciences Law and Governance Group Wageningen, July 2010

3 The Evolution of the Right to Food in the Human Rights Paradigm Preface Preface This thesis is part of my Master of Science International Development Studies at Wageningen University and Research Centre. I chose the specialisation Communication, Technology and Policy making because I am interested in the interaction between different policy fields and law and governance structures. The Wageningen University and Research Centre has profound experience with food related issues and is involved in the Right to Food debate. My affinity with distinctive sites of international law making triggered me to study this subject in more detail from a sociological and rights pluralistic approach. This thesis is supervised by Otto Hospes who I want to thank for his expert advice, feedback and inspiration during the process of writing. Furthermore I want to thank my friends and especially my parents for their confidence and unconditional support in many ways. Bas Kierkels Wageningen, July 2010 III

4 The Evolution of the Right to Food in the Human Rights Paradigm Summary Summary Nowadays, the right to food is a major topic in human rights law. This thesis tries to explore the considerations that are of importance in the current world order to realize this right. Globalization processes have integrated the world order in many ways and have implications for economic, social, cultural and political facets of human lives. Human rights standards exist for many years but culture, lifestyle, customs and norms affect the perception and definition of these standards that evolve over the years. The right to food has gained a lot of attention the last couple of decades and many consider this right as a precursor for other economic, social and cultural rights. Creating a better understanding of this right and especially its development provides insights in human rights thinking and tests if the human rights paradigm is still valid to ensure the filfilment of universal rights. I use a neo-institutional perspective to describe how global interaction processes take place. Within this neo-institutional approach the focus is on the World Polity Theory that describes political network practices in the current world order. This theory explains that culture and norms within the world polity are creators of institutional isomorphism and ensure that nation-states adapt the same global models of legitimate state action. Therefore universal standards are set within these networks that consist of multi-actor networks consisting of Inter-Governmental Organizations (IGOs), International Non-Governmental Organizations (INGOs), private corporations and states. Through this isomorphism the notion of sovereign nation-states acquires a different meaning than in the classical nation-hood model on which human rights standards are based. Global responsibility for human rights obligations and violations therefore also shift to non-state actors that are part of the policy-making processes and interfere in the lives of individuals. There is a correlation between human rights Non Governmental Organizations (NGOs) involvement and norm creation. For many years human rights NGOs have improved and facilitated processes of human rights realization. The more states are embedded in the international community, the better this would be for human rights implementation. According to the New Rights Advocacy movement, NGOs should work together in coalitions with developmental and environmental NGOs to make a stronger stand. New Rights Advocacy is a relatively new strategy that could be of great use for the right to food because it focuses on economic, social and cultural rights, it challenges the liberal market system as a way to realize human rights and also holds non-state actors responsible for human rights obligations. In order to successfully implement the right to food it would be a great way forward if the human rights-based approaches will be used in policy-making processes of major institutions like the WTO, IMF and the World Bank. Besides, it are IV

5 The Evolution of the Right to Food in the Human Rights Paradigm Summary the states that still have the primary responsibility to ensure that human rights are respected, protected and fulfilled and they should develop a national framework that could facilitate this process. Though, state action is often based on window dressing by ratifying human rights treaties without actually implementing and practicing these treaties. This decoupling from policy to practice can be a great opportunity for the civil society, and NGOs in particular, to hold states accountable to their obligations. A major challenge within the current world order is the agreements that the international free market system requires on the hand and the social values that should be incorporated and is demanded by the agreements of international human rights law. Much discussion on this issue is about extraterritorial obligations for the states, because it is not defined where they have effective control and how far their jurisdiction extends. Fact is that state sovereignty creates a major challenge on human rights thinking and especially on the notion about state s and non-state s obligations. The World Polity Theory has some limitations. It provides us with a social theory that often lacks in human rights thinking. It emphasizes the cultures and values that are behind policy-making and are of great importance in human rights standard setting. Nevertheless, it does not take into account the power relations within these networks and cultural differences at the national and regional levels. This theory claims that inclusive and homogenous organizations, like the UN, create such uniformity that it naively provides us a one-size-fits-all approach. In contradiction to this theory there is the Food Sovereignty framework that highly accentuates the unique national and regional circumstances that should offer opportunities for individuals to feed themselves. For this reason states should gain more sovereignty in the world order to establish their own regulations for realizing the right to food, without interference from dominant players in the field, or liberal trade policies. It is clear that the right to food has already been elaborated for many years but has not booked the successes it should have. It opens the discussion about many topics regarding human rights law. For example that state s and corporation s action should be judged on their violations instead of their progressive realizations. It also calls for more responsibility towards Trans-National Corporations that should act according to social corporate responsibility principles that imply positive obligations as well. Progress has already been booked in the making of hard and soft law, but the human rights paradigm still needs critical review. Multi-layered sociological and rights pluralistic approaches that include socio-legal, socio-political, socioeconomical views could be of great contribution in this debate. More the over, since human rights represent social values instead of economic values. In this way new opportunities for economic, social and cultural rights will be explored and enhanced. V

6 The Evolution of the Right to Food in the Human Rights Paradigm Table of Contents Table of Contents Preface...III Summary...IV Table of Contents...VI List of Boxes...IX Abbreviations...X Introduction...12 Subjects of Research...12 Objective...13 Research Questions...14 Main Research Question...14 Sub Questions...14 Theoretical framework...14 Human Rights-Based Approach to Development...14 New Rights Advocacy...14 The World Polity Theory...15 Structure of the Report...15 Part A...15 Part B...15 Part C...16 Part A...17 Chapter 1 The evolution of Human Rights Human Rights Evolution till the Universal Declaration of Human Rights Human Rights after the Universal Declaration of Human Rights The Economic, Social and Cultural Rights The United Nations The State The Non-State Actors Violations of Economic, Social and Cultural Rights The Limburg Principles and the Maastricht Guidelines The Violation Approach Review of the Chapter...29 Chapter 2 The Right to Food Defining the Right to Food Human Rights Instruments...30 VI

7 The Evolution of the Right to Food in the Human Rights Paradigm Table of Contents Availability Accessibility Stability Adequacy Obligations to Respect, Protect and Fulfil the Right to Food The Voluntary Guidelines Food Sovereignty, Food Security and the Right to Food Food Sovereignty Food Security The Right to Food Progress of the Right to Food Review of the Chapter...41 Chapter 3 NGOs and Human Rights What are NGOs? Definition of NGOs Human Rights NGOs Role of NGOs How Human Rights NGOs Operate Participation of NGOs Theories about Human Rights and Development Human Rights and Development Human Dignity Approach Entitlement Approach Human Rights-based Approach to Development NGOs and Advocacy Advocacy Networks New Rights Advocacy Review of the Chapter...56 Part B...58 Chapter 4 Globalization and the Human Rights Paradigm Globalization Processes and the State Human Rights Agreements and the Agreements of Globalization Paradox of Empty Promises Theory on Global Networks The World System Analysis The World Polity Theory The life Cycle of a Norm States and Human Rights Norms TNCs and Norms Review of the Chapter...76 VII

8 The Evolution of the Right to Food in the Human Rights Paradigm Table of Contents Chapter 5 The World Order The History of the World Order Regimes The Human Rights Regime The Food Regimes Food Security The Right to Food Food Sovereignty International Human Rights Law Extraterritorial Human Rights Obligations Limits of Extraterritorial Human Rights Obligations Soft Law Interpretations of Rights Soft Law and States Soft Law and TNCs Obligations of Result and Obligations of Conduct Review of the Chapter...95 Part C...97 Chapter 6 Conclusion The History of Human Rights The Role of NGOs Implementing New Approaches Influence Decision-Making Processes The Right to Food a Precursor for Economic, Social and Cultural Rights The World Polity Theory Final Remark Overview References Annex A VIII

9 The Evolution of the Right to Food in the Human Rights Paradigm List of Boxes List of Boxes Box 1: Box 2: Box 3: Box 4: Box 5: Box 6: Box 7: Box 8: Box 9: Box 10: Box 11: Box 12: Box 13: Box 14: Box 15: Box 16: Box 17: Box 18: Box 19: Box 20: Article 1 of the Universal Declaration of Human Rights Article 25 of the Universal Declaration of Human Rights Article 55 of the UN Charter Article 56 of the UN Charter Article 2 of the ICESCR Article 11 of the ECESCR Pillars of Food Security Pillars of the Right to Food General Comment on the Right to Adequate Food Article 70 of the UN Charter Article 71 of the UN Charter Human Rights Watch about Economic, Social and Cultural Rights World System Analysis and the Globalization of Law World Polity Theory and the Globalization of Law The Life Cycle of a Norm Three Food Regimes since the 1870s Article 2 of the ICESCR Article 11 of the ICESCR General Comment 12 on the Right to Adequate Food General Comment 14 on the Right to Health IX

10 The Evolution of the Right to Food in the Human Rights Paradigm Abbreviations Abbreviations AI Amnesty International ADB Asian Development Bank ASEAN Association of Southeast Asian Nations CARE Christian Action Research and Education CAT Committee Against Torture CEDAW Committee on the Elimination of Discrimination Against Women CERD Committee on the Elimination of Racial Discrimination CESCR Committee on Economic, Social and Cultural Rights CMW Committee on Migrant Workers CPR Civil and Political Rights CRC Committee of the Rights of the Child CSO Civil Society Organizations DC Developed Countries ECOSOC Economic and Social Council ESCR Economic, Social and Cultural Rights EU European Union ETO Extraterritorial State Obligations FAO Food and Agriculture Organization FIAN Food First Information and Action Network GATT General Agreement on Tariffs and Trade GC12 General Comment 12 GONGO Government Organized Non Governmental Organizations HRC Human Rights Committee HRW Human Rights Watch ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights IFI International Financial Institutions IGO Inter-Governmental Organization IGWG Intergovernmental Working Group ILO International Labour Organization IMF International Monetary Fund INGO International Non Governmental Organization LDC Least Developed Countries NATO North American Treaty Organization NGO Non Governmental Organization OECD Organization for Economic Co-operation and Development OHCHR UN Office of the High Commissioner for Human Rights OIC Organization of the Islamic Conference X

11 The Evolution of the Right to Food in the Human Rights Paradigm Abbreviations OPEC Organization of Petroleum Exporting Countries Oxfam Oxford Committee for Famine Relief PRSP Poverty Reduction Strategy Papers TNC Trans-National Corporation UDHR Universal Declaration of Human Rights UIA Union of International Associations UN United Nations UNDP United Nations Development Project UNICEF United Nations Children s Fund VG Voluntary Guidelines WANAHR World Alliance of Nutrition and Human Rights WB World Bank WFP World Food Programme WHO World Health Organization WTO World Trade Organization XI

12 The Evolution of the Right to Food in the Human Rights Paradigm Introduction Introduction Subjects of Research Currently, more than 854 million people worldwide face hunger and malnutrition. Some 820 million of them live in economically developing countries (FAO, 2006). Hunger and malnutrition today are not caused by food shortage, or scarcity: hunger is an issue of access to food, to an adequate income, or to productive resources that allow poor people to either produce or buy enough food (Windfuhr and Jonsén, 2005). Historically, development activities have often been based on practical grounds to raise gross domestic product or defuse civil conflict. Though the history of human rights shows us that, especially in the last few decades, more attention is paid to economic, social and cultural rights. Before the Cold War more policies, agreements and work was done on the civil and political rights. They were considered as more absolute and justiciable, and besides these rights were measured as free and therefore cheaper. In this light also the concept of the right to food has gained more attention. This right is derived from the International Covenant on Economic, Social and Cultural Rights (ICESCR). The Special Rapporteur on the Right to Food in 2002 defines the concept as follows: "to have regular, permanent and unrestricted access, either directly or by means of financial purchases, to quantitatively and qualitatively adequate and sufficient food corresponding to the cultural traditions of people to which the consumer belongs, and which ensures a physical and mental, individual and collective fulfilling and dignified life free of fear" 1. In order to realize this right states have the legal obligations to respect, protect and fulfil this right. Another trend in the past few decades is the enormous international growth of the civil society. Governments are not any longer the only major actors that play a role on the international stage, but also Non Governmental Organizations (NGOs) and Trans-National Corporations (TNCs) have a great contribution in this arena (Welch, 2001). NGOs for one have often been shapers of human rights policies and even within the UN and the EU institutional arrangements for their participation in the policy-making processes are constructed. In the last decade NGOs more and more stress the importance of basic human rights, referred to as rights-based development (FAO, 2002). Even NGOs like Amnesty International, which were formally founded for the protection of civil and political rights, are now extending their activities towards economic, social and cultural rights from a human rightsbased approach. This new trend is explained as the New Rights Advocacy and can be of great contribution to the enhancement and realization of the right to food. This right, among all the other economic, social and cultural rights, demands responsible 1 Special Rapporteur on the Right to Food, Office of the United Nations High Commissioner for Human Rights. Source: 12

13 The Evolution of the Right to Food in the Human Rights Paradigm Introduction action and commitment from all members of society, including the private sector. The international community should give their multi-layered response to the current situation in which millions of people have no access to food. Objective Globalization processes have been a major theme in the social sciences in the last couple of decades. The world order became much more interconnected through economic liberalization and integration. This has also implications for political and social levels of regulation. In this thesis the focus is on human rights. Human rights standards exist for many years and are negotiated, drafted and ratified at the highest levels of society. In order to implement and realize these human rights standards it is important that transgovernmental processes are included in this study. In an integrated, globalized world there are many interests from different players in the field at stake. International structures and negotiation networks have impact on the lives of individuals. In this thesis I want gain a better understanding of the meaning of human rights standards and how they have evolved. The concept of the right to food is a recently important topic on the human rights agenda and gives a good insight in how a human right develops over the years. Besides, this concept also provides a concrete tool to look at the way the world society is organised and international law is elaborated. The concept can also challenge the human rights paradigm that is based on the classical model of the nation-state structure. Furthermore it offers a comprehensive notion about the underlying principles and norms of the human rights standards. In short, there are some important topics that have been raised and will be elaborated in the thesis: The history and evolution of human rights The concept of the right to food Human rights NGOs involvement in the global domain The underlying notions of transnational structures In this thesis I want to explore the relationship between the human rights-based approach in the field of economic, social and cultural rights and how NGOs are involved in this field and could play a role in the realization of human rights standards. Above all it will touch on several points that are subject to many debates in the complex arena of the global world society and in particular within the human rights paradigm. 13

14 The Evolution of the Right to Food in the Human Rights Paradigm Introduction Research Questions The outlined situation and objectives, as described above, can be converted into a number of concrete research questions. The following question will serve as a guideline throughout the thesis. Main Research Question How to conceptualize the right to food in a globalizing world? Sub Questions How did human rights evolve over the years? What is the role of NGOs in the field of human rights realization? What entails the right to food? Is there a sociological theory that could contribute to the (re)thinking about international human rights law? Theoretical framework The approaches and theories I will use in my thesis are very briefly summarised below. Later in this thesis I will explore and go more into depth of their content. Human Rights-Based Approach to Development The right to food is often considered as a precursor for development. Directly and indirectly it is related to many topics of development, for example land rights, labour conditions and environmental issues. Therefore I will emphasize a human rightsbased approach to development. This perspective puts individual s first and stresses liberty, equality and empowerment. A human rights-based approach uses the realization of human rights in the development process and is of significance in the debate about the right to food. New Rights Advocacy New Rights Advocacy is a theory that is proposed by Nelson and Dorsey (2007). This approach focuses much more on social and economic rights than former NGO advocacy tactics. It also challenges liberal, market-oriented development theories. In this light it does not see the states primary as duty bearers, but also multinationals and private organizations. This theory will be of benefit in this thesis because it reflects on the current world system and appeals for a switch in human rights thinking, advocating and practicing. Besides it especially emphasizes economic, social and cultural rights and therefore is a useful theory in the right to food discussion. 14

15 The Evolution of the Right to Food in the Human Rights Paradigm Introduction The World Polity Theory Social sciences have been involved in the study about global processes, but could also contribute to the debate surrounding international human rights law that is often dominated by juridical perspectives and approaches. In this thesis I will use a neo-institutional approach that gives a sociological view of the interaction of institutions and networks of states and international organizations and the way they affect society. This approach reasons that organizations are under a certain pressure due to the institutional environment wherein they conform to informal and formal rules. The neo-institutional approach provides useful insights and understanding of political globalization. Especially the World Polity Theory has contributed to the explanation of institutional isomorphism and offers a view on the world culture. The World Polity Theory holds that states are embedded in the world polity that is a global network of Inter-Governmental Organizations (IGOs), states, International Non-Governmental Organizations (INGOs) and societies that exhibits a distinct world culture. These IGOs and INGOs create, carry and embody the world culture in the world polity, diffusing policy scripts - global models of legitimate state action - to states (Beckfield, 2003). Structure of the Report The outline of this thesis is threefold. It consists of three different parts with its belonging chapters. Part A This is the descriptive part of the thesis and aims to give a clear understanding of the context of this thesis. Chapter 1 illustrates and reviews the historical evolution of the human rights regime. Chapter 2 zooms into this regime and will focus on the concept of the right to food and the related human rights regulations. Chapter 3 defines the human rights NGO movement and their working style. Above all it contemplates the New Rights Advocacy theory. Part B This part will provide the theoretical framework and the practical adaptation of the current state of affairs on the human rights paradigm. In Chapter 4 the globalization processes and the related agreements shall be explained with special attention for human rights practices. Furthermore it elaborates the World Polity Theory as a lens to look at institutional interaction at the global level and the implications at the national and international level. Chapter 5 gives, in a practical sense, the current world society and will describe how one can distinguish the evolution of food regimes and challenges some of the limitations and opportunities within the international law system. 15

16 The Evolution of the Right to Food in the Human Rights Paradigm Introduction Part C Chapter 6 will give the conclusions that could be drawn from all the previous chapters and will analyse and link the theories and approaches to the international framework, with a particular focus on the right to food. In the end this chapter will answer the research questions. 16

17 The Evolution of the Right to Food in the Human Rights Paradigm Part A Part A It is in justice that the ordening of society is centered - Aristotle - 17

18 The Evolution of the Right to Food in the Human Rights Paradigm Chapter 1 Chapter 1 The evolution of Human Rights 1.1 Human Rights Evolution till the Universal Declaration of Human Rights Thinking about human rights exists for a long time. One of the earliest legal documents, which specifically limited the power of the government over its citizens, was the Magna Carta (Great Charter). King John of England signed this document in The Magna Carta required the King to renounce certain rights, respect certain legal procedures and accept that the will of the King could be bound by the law. This Charter was one of the forerunners of guiding documents of many other countries that have further expanded the rights and liberties of the people and limited the power of the government. After the Thirty Years of War, the Peace of Westphalia in 1648 tried to create a system that respected the right of the states with freedom from outside interferences. The objective of Westphalia was to prevent war. In this perspective international law did not protect individual rights, but the rights of the governments of these individuals (Maogoto, 2003). It was not until the enlightenment of the 1700s that people began pressing for rights for all the individuals. Attentions shifted to individual needs and participation (Rayner, 2007). Philosophers like Grotius, Hobbes and Locke promoted the protection of people s rights against an oppressive government. Locke argued for limited government and a government that has the obligation to secure people natural rights: life, liberty, and property (Donnelly, 2003). The concept of natural rights was born. The notion of a natural right is that people possess certain rights by virtue of being human. This emancipating thinking led to the English Bill of Rights (1689), US Declaration of Independence (1776), the French Declaration on the Rights of Man and Citizen (1789) and the US Constitution and Bill of Rights (1791). Rayner explains that: the doctrine of human rights that we now have are direct descendants of this thinking (Rayner, 2007). Labour organizations and trade unions were also pioneers in the shaping of human rights. It is not surprising that The International Labour Organization (ILO) would be the first global human rights institution that protected workers rights and a broader compass of human rights since Then, in 1941, during World War II, Franklin D. Roosevelt the President of the United States addressed the fundamental principles for a peaceful and democratic world. These principles are the Four Freedoms: Freedom of speech and expression Freedom of every person to worship in his own way Freedom of want Freedom from fear 18

19 The Evolution of the Right to Food in the Human Rights Paradigm Chapter 1 The First Lady of the United States, Eleanor Roosevelt who was the Chairperson of the UN Commission on Human Rights, took the lead to go from these Four Freedoms to the Universal Declaration of Human Rights (UDHR). On 10 December 1948 the General Assembly of the United Nations adopted and proclaimed the UDHR. 1.2 Human Rights after the Universal Declaration of Human Rights The UDHR recognizes and guarantees human dignity. Article 1 in this Declaration states: Box 1: Article 1 of the Universal Declaration of Human Rights All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Source: Universal Declaration of Human Rights The UDHR recognizes the inherent dignity and the equal and inalienable rights of all members of the human family. It is the foundation of freedom, justice and peace in the world. Even though the Declaration was a fact, it still is a treaty and not a resolution. Therefore it is hard to provide protection for human rights in its full sense. This is also demonstrated in the first two decades of the Cold War. This war showed that neither bloc was willing to allow the UN to do their job properly in the field of human rights. By the mid-1960 s human rights were fully internationalized, but the implementation remained almost entirely national (Donnelly, 2003). During the Cold War states went back to statism and only after the Cold War states became more committed to human rights. So, it would take some time before human rights got really accepted. An important step in the enhancement of human rights was set in The UDHR was to be separated into two covenants: the International Covenant on Civil, and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). These Covenants got ratified among the UN member states a year later and led to the first World Conference on Human Rights in 1968 (Cooper, 1998). These events made a shift in the duties of the UN and its member states. Instead of standard setting they were required to implement these standards. Now parties also had to submit periodic reports and the supervisory Committees were allowed to question state representatives and draw attention to shortcomings (Donnelly, 2003). In these decades after World War II the number and influence of NGOs also expanded. In 1956 there were about 973 NGOs concerned with human rights and in 1996 this number increased to 5471 (Welch, 2001). Since 1965 the international community has developed standards on rights relating to specific groups within society, for example, racial and ethnic groups, women, indigenous peoples and 19

20 The Evolution of the Right to Food in the Human Rights Paradigm Chapter 1 children. NGOs for example participated in the drafting of the Treaties about Women Rights (1979), Torture (1984) and the Rights of the Child (1989). Cakmak (2004) claims that: this implies that there is a correlation between NGOs activities and norm creation. NGOs played a significant role in the thinking of human rights after the Cold War. In 1993, The Second World Conference on Human Rights in Vienna helped to refocus on human rights issues with the involvement of state members, international organizations and NGOs. In the Vienna Declaration all governments affirmed that all human rights are universal, indivisible, interdependent and interrelated. In the light of a raising awareness human rights activities expanded and led to the establishment of the ad-hoc Tribunal for the former Yugoslavia (1993), the Rome statute of the International Criminal Court (1998) and other ad hoc tribunals 2 (Cooper, 1998). This brief overview shows that there is an evolution in the thinking about human rights. Before World War II human rights were considered as a domestic concern. After the War thinking about human rights emerged. The Nuremberg War Crimes Trials, for example, was the first Tribunal and introduced the crimes against humanity. For the first time, officials were held legally accountable to the international community for offences against individual citizens. This trend is set forward and human rights are on the international agenda ever since. 1.3 The Economic, Social and Cultural Rights In the evolution of human rights several accomplishments have been reached. Eide (1996) points out that there are three stages in this evolution in which he refers to the work of T.H. Marshall in the 50 s. Hence, civil rights had been the great achievement of the eighteenth century, laying the foundation of the notion of equality of all members of society before the law; political rights were the principle achievement of the nineteenth century by allowing for increasingly broader participation in the exercise of sovereign power; social rights were the contribution of the twentieth century, making it possible for all members of society to enjoy satisfactory conditions of life. Also in international law this evolution is evident. First there was a main focus on civil and political rights, but economic, social and cultural rights gained more attention and have its Covenant that binds states to their legal obligations. The UN is the only international entity with jurisdiction for universal human rights legislation and base their jurisdiction on the International Bill of Human Rights, consisting of: 2 E.g. Ad-hoc court for East Timor (1999), ad-hoc court for Sierra Leone (2002), ad-hoc court for Cambodia (2005) 20

21 The Evolution of the Right to Food in the Human Rights Paradigm Chapter 1 The Universal Declaration of Human Rights The International Covenant on Economic, Social and Cultural Rights International Covenant on Civil and Political Rights o Two Optional Protocols to the International Covenant on Civil and Political Rights Of significance is that especially since 1966 awareness about conditions to meet basic human needs such as food, shelter, education, health care, and gainful employment emerged. Cakmak (2004) states that culture, custom, religion and lifestyle, along with many other variables, have affected the perception and definition of rights. Today more than 150 countries have ratified the ICESCR and many countries have articulated their commitment to this Covenant through domestic law and national constitutions. The following economic, social and cultural rights are recognized in the ICESCR and the UDHR: Fair and safe working conditions for workers; The right to seek and choose work; The right to form, join and act together in trade unions; Social security, including government assistance during old age and in times of unemployment, and money or other help for people at other times when they need assistance in order to live their lives with dignity; assistance and protection for families; Equal marriage rights for men and women; An adequate standard of living for everyone, involving adequate clothing, housing, and food; A high standard of health and health care for all; Satisfactory primary education for all and increased opportunities for further education; The right to participate in the cultural life of the community; and The right to benefit from scientific progress The United Nations The UN has many bodies that carry out their mandates. The above-mentioned human rights are protected by the following mechanisms: The UN Office of the High Commissioner for Human Rights (OHCHR) This department is mandated to promote and protect the enjoyment and full realization, by all people, of all rights established in the Charter of the United Nations and in international human rights laws and treaties. The mandate includes preventing human rights violations, securing respect for all human rights, promoting international cooperation to protect human rights, coordinating 21

22 The Evolution of the Right to Food in the Human Rights Paradigm Chapter 1 related activities throughout the United Nations, and strengthening and streamlining the United Nations system in the field of human rights 3. UN Human Rights Council The Human Rights Council replaces the Commission on Human Rights as the main UN body charged with monitoring and evaluating conditions of human rights in countries around the world and identifying major areas of concern. This includes a system of special procedures, expert advice, and a complaint procedure. Composed of 47 Member States elected by the UN General Assembly, the Council serves as a round-table for governments and civil society groups to raise concerns about human rights abuses in particular countries, as well as thematic areas of concern. The Council meets at least three times a year and also functions through a series of working groups and special procedures 4. Special Procedures of the Human Rights Council These include the Open-ended working group to consider options regarding the elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, which include an individual complaint mechanism. Special procedures with thematic mandates include Special Rapporteurs on Adequate Housing, the Right to Education, the Question of Human Rights and Extreme Poverty, the Right to Food and the Right to Health, who are able to receive information on specific allegations of human rights violation and send urgent appeals or letters of allegation to governments asking for clarification, as well as reporting on visits and investigations, which uphold the basic principles and core values of economic, social and cultural rights 5. Human Rights Treaty Bodies The following bodies monitor the implementation of the treaties: o Human Rights Committee (HRC) o Committee on Economic, Social and Cultural Rights (CESCR) o Committee on the Elimination of Racial Discrimination (CERD) o Committee on the Elimination of Discrimination Against Women (CEDAW) o Committee Against Torture o Committee on the Rights of the Child (CRC) o Committee on Migrants Workers (CMW) 6 3 OHCHR, Who we are, mandate. Office of the High Commissioner for Human Rights. Source: 4 ESCR-Net, International Network for Economic, Social & Cultural Rights. Source: 5 Idem 6 Idem 22

23 The Evolution of the Right to Food in the Human Rights Paradigm Chapter 1 Especially the Committee on Economic, Social and Cultural Rights (CESCR) is of importance in monitoring the extent to which state parties comply with the ICESCR. States are obligated to send reports about their improvements every five years to this Committee. The Committee tries to influence states to respect their obligations. In short, the CESCR monitors the progress (or backsliding) of each State Party to the Covenant. The CESCR also produces general advice on how violations occur and on how progress can be made in fulfilling Covenant obligations. (McChesney, 2007). The Committee also issues General Comments on the scope of rights and obligations under the treaty. General Comments are authoritative, although not legally binding, interpretations of obligations under the treaty on the basis of the Committee s understanding of state practice. General Comments aid international understanding of the nature of these rights and the obligations of states that have agreed to be bound by the Covenant (Amnesty International, 2005). Even though all these bodies exist within the UN, it is still dependent of the cooperation of states. Above all, international law is enforced within nation-states. McChesney (2007) questions the effectiveness of the UN to correct nation-states because punishment for international human rights violations occur rarely and the UN s method to combat violations usually consists of publicity, political pressure and advice, rather than court cases or other actions that are often used to enforce laws within a country. Restrictions on trade, investment or diplomatic privileges can be useful tools, but McChesney (2007) warns that it are the governments that provide the money for running the UN and they determine its budget. An additional argument for the weak effectiveness of the UN is that it has no own human rights police and therefore has to cooperate with governments in their investigations and prosecutions. All this point out that human rights realization is highly dependent on state action The State Although jurisdiction for human rights legislation is in hands of the UN, it are the states that are the most important players in the field of realizing human rights. Only states can implement regulations that are consistent with human rights standards. The ICESCR and related treaties provide the individual and community with a range of guarantees related to economic, social and cultural rights. Each of these rights carries corresponding obligations by the state. Universal human rights are in essence not political ideas about treating everyone fairly, but are actually part of international law. If there is a conflict between the law of a country and universal human rights, it is the law of the country that should change. The first and immediate obligation of a state is to respect human rights standards. McChesney (2007) explains that this means that state authorities should avoid interfering with the enjoyment of Covenant rights. A violation of the obligation to 23

24 The Evolution of the Right to Food in the Human Rights Paradigm Chapter 1 respect economic, social and cultural rights occurs when a state adopts policies, laws or programs that disobey or ignore the Covenant, or when state authorities act in ways that go against what is promised by the Covenant. For example: states should not keep people from educating themselves, they must not tolerate unfair trials, they must not destroy people s food resources etc. A state is required to ensure that none of its own agencies or public officials violate or impede the effective enjoyment of human rights standards (FAO, 2007). This obligation is a negative obligation because it tells states what not to do. The second obligation of a state is to protect human rights standards. This is a positive obligation because it expects a state to undertake action. States should take legislative and other measures needed to protect people. According to McChesney (2007) it requires states to prevent or stop violations of Covenant rights by people or organizations who are not part of the government. A government violates its own obligations when it fails to prevent violations committed by others. The third obligation is the positive obligation to fulfil human rights standards. The ICESCR requires that states have a commitment to take steps in a deliberate and concrete manner within a reasonable timeframe. This obligation can be divided in the obligation to facilitate and to provide. The obligation to fulfil by facilitating means that states must pro-actively engage in activities intended to strengthen people's access to and utilization of resources and to ensure their livelihood. This can take many forms, mostly spelled out in relevant instruments. Secondly, whenever an individual or group is unable, for reasons beyond their control, to enjoy their rights, states have the obligation to provide that right directly (Ziegler, 2000). The ICESCR is the most important legal instrument that binds states to their obligations. General Comment 3 gives an interpretation of the nature of states parties obligations outlined in this Covenant. It spells out that under international law, nation-states have both progressive and immediate obligations. The duty to take steps and to achieve progressively the full realization of the rights is an immediate obligation. Amnesty International (2005) argues that the concept of progressive realization of rights does not justify government inaction on the grounds that a state has not reached a certain level of economic development. To rely on circumstances beyond its control to justify rolling back the realization of rights, the state has to show that it could not reasonably have prevented the negative impact on the right. Another immediate obligation is the state s duty to prioritize minimum core obligations and minimum essential levels of each of the rights. In General Comment 3 this is acknowledged as: A state party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of 24

25 The Evolution of the Right to Food in the Human Rights Paradigm Chapter 1 basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant 7." The duty of non-discrimination is also an immediate obligation that is stated in Article 2 of the ICESCR. Article 2 points out that: The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status 8. The duty to prioritize the most vulnerable is an immediate obligation as well. General Comment 3 states that: the Committee underlines the fact that even in times of severe resources constraints whether caused by a process of adjustment, of economic recession, or by other factors the vulnerable members of society can and indeed must be protected by the adoption of relatively low-cost targeted programmes 9. Nation-states should respect, promote and protect human rights within its nation borders, but also should allow and facilitate the co-operation by states in order to achieve this. That is their duty beyond borders. Therefore, State parties should recognize the essential role of international cooperation and comply with their commitment to take joint and separate action to achieve the full realization of the ICESC. Article 2 of the ICESC states that: Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures 10. Since governments have the responsibility for human rights realization to their citizens within their nation boundaries the role of national legislatures is important. States have agreed to take steps to achieve the full realization of the rights embodied in the instruments concerned. In September 1997, the Inter-Parliamentary Union adopted a resolution that urges parliaments to ensure that: (a) international and regional human rights treaties are ratified and reservations withdrawn; (b) national legislation is consistent with international human rights; (c) independent national human rights institutions are established; and (d) necessary resources are provided for action to promote and protect human rights, especially through human rights education (Eide, 2000). 7 Committee on Economic, Social and Cultural Rights, General Comment 3, The nature of states parties obligations, paragraph 10, UN Doc. E/1991/23 8 International Covenant on Economic, Social and Cultural Rights, Article 2, UN Doc., Committee on Economic, Social and Cultural Rights, General Comment 3, The nature of states parties obligations, paragraph 12, UN Doc. E/1991/23 10 International Covenant on Economic, Social and Cultural Rights, Article 2, UN Doc.,

26 The Evolution of the Right to Food in the Human Rights Paradigm Chapter The Non-State Actors Although states and the UN are mandated to mainstream ICESCR in their policies, it is at least the moral responsibility of individuals, groups, associations and corporation s to be an active participant in the promoting and protecting of human rights. In an era of increasing economic globalization and growing inequality within and between states, there is an urgent need for grassroots groups, NGOs, academics, and other organizations and individuals to unite in claiming, promoting, and defending the human rights of all persons. Maogoto (2003) reasons that sovereignty in its international context continues to play a vital role, the powers, immunities, and privileges of sovereignty are now subjected to increased limitations. These limitations are the result of the need to balance the recognized rights of sovereign states against the greater needs for international justice spawned by a concern for humanitarian norms. Coming from a history where only nation-states were involved in world affairs and their sovereignty was protected by a treaty like The Peace of Westphalia it is a remarkable change in the thinking of international governance and accountability. Human rights also gained the attention of regional regimes that emerged. After World War II for example, the Council of Europe (1949), the Inter-American Commission on Human Rights (1960) and the African Court of Human and Peoples Rights (1998) were established. Due to the set up of these institutions human rights issues are no longer a concern for single nation-states only. NGOs play a major role in bringing rights issues to the forefront of the global conscience. Already in the Limburg Principles it is stated that: NGOs can play an important role in promoting the implementation of the Covenant. This role should accordingly be facilitated at the national as well as the international level 11. Fortunately, NGOs participate already for a long time in the standard setting of human rights and the establishment of human rights bodies. This is of benefit because NGOs have an in-depth knowledge of a countries weakness and strengths. They also have a major role in fact-finding and often provide crucial, factual evidence of violations to the Committee and push for remedies (McChesney, 2007). It are not only the states that influence the enjoyment of human rights, but also the private business and other global organs. IGOs like the World Bank and IMF have a great influence and can shape a state s economic and social policies. The World Bank for example is not mandated to consider human rights in its lending policies, but uses primarily economic criteria. Though states have to respect, protect and fulfil human rights in all their activities and also in their actions and decisions taken through the World Bank. 11 The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, 1986, Part I, General Observation 9 26