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The Subjects and Beneficiaries of the Right to Food

The principal holders of the right to food under the terms. of article 11 are individuals. The right of individuals is formulated in terms of "the right of everyone". Whereas sub-paragraph 2 uses only this phrase, the terminology used in sub-paragraph 1 is “the right of everyone... for himself and his family”. The question which then arises is to what exactly is the individual entitled? In practical terms, the answer will depend on the circumstances of the individual and of his or her geographical location at a given time. From the present perspective the most important point is to recognize the need to develop, at the national level, a set of relevant legal norms which reflects and seeks to satisfy the State's international legal obligation to promote realization of the right of everyone to adequate food.

Another level at which one can identify a holder of the right to food is that of the State. Whether this is a collective right attaching directly to peoples or to States or whether it is rather an aggregation of the human rights of individuals which is articulated through the medium of the State, is an important theoretical question, but it is of limited practical relevance in the present context.

Article 11 does not specifically identify States as holders of the right to food. Nevertheless by imposing duties upon States to act, "through international co-operation", the article implicitly vests rights in certain States as a corollary of the duty of all States act. Moreover, in practical terms, the obligation of States parties "to ensure an equitable distribution of world food supplies in relation to need" can only be operationalized on an inter-state basis. The shield (or the sword) of State sovereignty severely restricts the possibility of implementing such an obligation at any other level.

The question of which States might be entitled to make claims on the grounds that they are subjects of the right to food, can only be answered on the basis of an assessment of the overall availability of food at the national level by comparison with the aggregated needs of the State's inhabitants for adequate food. The closest the international community has come to making such a global assessment is

the category of "most seriously affected countries" which were those which, in the wake of the 1972 oil-price rises, were deemed to be in need of emergency assistance to pay for minimum impoft requirements of food, fertilizers and industrial inputs. This categorization is effectively obsolete today. Other criteria would therefore need to be established in order to assess whether or not particular country enjoys an equitable share of world food supplies in relation to need.

The Objects or Duty-holders of the Norm

In analysing the duties relating to the right to food which derive from the relevant provisions of the Covenant, four main categories can be distinguished (UN 1980). They are: (a) States in respect of their domestic duties; (b) States in respect of their external duties; (c) individuals; and (d) the international community.

Before seeking to establish the scope and nature of these duties it is useful to refer briefly to the approach to duties proposed by Henry Shue. He suggests that three types of duties correlate with every basic right. As applied to what he terms as a "subsistence right" such as the right to food, these

are:

(a) Duties not to eliminate a persons' only available means of subsistence – duties to avoid depriving. (b) Duties to protect people against deprivation of the only available means of subsistence by other people duties to protect from deprivation.

(c) Duties to provide for the subsistence of those unable to provide for their own - duties to aid the deprived. 34

It is beyond the scope of this analysis to identify the consequences for various entities of applying such an approach to the duties which attach to the right to food. Nevertheless such an analysis will have to be undertaken sooner or later if the duties attaching to the right to food are to be spelt out and an appropriate system of accountability established. Such a system is an indispensable component of a comprehensive, balanced, practical and effective approach to the right to food.

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States' Domestic Duties

In essence the domestic obligation of a State party to the Covenant is to take steps, to the maximum of its available resources, with a view to achieving progressively the full realization of the right of everyone, without discrimination, to adequate food (articles 2(1), and 2, and 11(1). The steps required to be taken include, but are not limited to, those specified in article 11(2)(a) which were considered to be an "economic" right; developing countries are permitted, "with due regard to human rights and their national economy," not to guarantee the right to food to non-nationals (article 2(3)). A State party is also obliged to ensure that its own people is not in any case deprived of its means of subsistence (article 1(2)) which must, as a minimum, be interpreted to include food.

The key issue as regards States parties' domestic duties concerns the meaning of the obligation “to take steps". It is clear on the basis of the text both of article 2 and of articles 6-15 dealing with individual rights, that the phrase "to the maximum of its available resources" should not lead to the obligation being viewed exclusively as a matter of making appropriate budgetary allocations.

Although the Covenant does not contain any provision which is equivalent to article 2 of the International Covenant on Civil and Political Rights which specifically requires States to take "necessary" legislative and other measures, it is reasonable to assume on the basis of the travaux préparatoires (UN 1955), and of the practice of States in their reports under the Covenant that the "steps" required to be taken include the adoption of some type of legislative, executive and/or administrative measures oriented specifically towards realization of the right in question. The validity of such an emphasis on the role of law also confirmed by the provisions of article 2(2) whereby States parties "undertake to guarantee" the exercise of the relevant rights without discrimination on certain grounds, article 3 by which States parties "undertake to ensure the equal right of men and women to the enjoyment" of the relevant rights, and article 4 whereby limitations on the enjoyment of rights are restricted to those "determined by

law." In addition, article 11(1) commits States parties to "take appropriate steps" to ensure the realization of this right."

In so far as a requirement to take legal or administrative measures can be deduced from the Covenant it does not amount to an obligation to ensure immediate realization. This is made abundantly clear by the use of the phrase “achieving progressively." Nevertheless, the leeway provided by this provision does not obviate the need to adopt at least rudimentary laws and for regulations and/or policy statements designed to establish appropriate policies and to form the basis on which progressive realization can be built. As an indication of good faith this could be expected to include the drawing up of a coherent, and as far as possible comprehensive, plan setting out the steps to be followed in seeking to realize progressively the right to food. Article 11 (2) provides an indication of some of the matters which should be addressed in the context of specific legislative or administrative measures.

In contrast to States parties' obligations under the Civil and Political Rights Covenant, States parties to the other Covenant are not required to ensure that an effective remedy is available to any person whose economic rights, including the right to food, are violated. This would not of course preclude the adoption of such an approach in domestic law or in the context of a regional human rights arrangement.

Thus, despite the apparent vagueness of the domestic duties of States to implement the Covenant's provisions on the right to food, their importance should not be underestimated. In addition to representing an international obligation on the basis of which they can be held accountable, politically as well as legally, States parties have also made a formal commitment against which their own peoples may assess their domestic policies.

States' External Duties

General Assembly resolutions 34/46, 35/179, and 36/133 have recognized that

in order fully to guarantee rights and complete personal dignity, it is necessary to guarantee the right to (inter alia)... proper nourishment, through the adoption of measures at the national and international

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levels, including the establishment of the new international economic order.

Similarly, food has figured prominently in various NIEOrelated instruments such as the Programme of Action on the Establishment of a New International Economic Order. 35 This emphasis on the international dimensions of the right to food accurately reflects the approach adopted in the Covenant.

With respect to external duties, States parties to the Covenant are obliged to take steps through international assistance and co-operation, especially economic and technical, to the maximum of their available resources with a view. to achieving progressively the full realization of the right to food (article 2(1) and article 11). Although the potential beneficiaries of this provision are not specifically limited to States parties, the Covenant cannot readily be interpreted as vesting legal rights in non-states parties. States are also required to avoid depriving any people of its own means of subsistence (article 1(2)). The "essential importance of international co-operation" is further recognized in article 11(1), but it is stated to be "based on free consent." The significance of this qualification is open to debate. The travaux préparatoires do not enlighten us but the qualification was presumably inserted as a safety clause against any assumption that food-surplus States have an automatic responsibility to make transfers to food-deficit States. Nevertheless, "free consent" cannot reasonably be interpreted as nullifying the commitment to international co-operation (either in paragraph 1 or 2 of article 11) by rendering it entirely optional. Nor can it defeat the overall responsibility provided for in article 2. It should thus be taken as meaning that while an obligation to international co-operation exists, the form which such co-operation will take is to be determined in accordance with the free consent of the State concerned.

States parties to the Covenant also undertake to take measures "to ensure an equitable distribution of world food supplies in relation to need" and in so doing to take "into account the problems of both food-importing and foodexporting countries" (article 11(2)(b)).

By applying the approach proposed by Henry Shue, Philip