IV. The Right to Food: Obligations under International Law

Both the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights guarantee a right to food. Adopted in 1948 by the General Assembly, Article 25 of the Universal Declaration couches the right within the broader context of an adequate standard of living that includes health, food, medical care, social services, and economic security.⁵⁰ The Universal Declaration sets the baseline for human rights protection.

In 1991, Zimbabwe acceded to the International Covenant on Economic, Social and Cultural Rights, which contains specific and detailed provisions about the right to food. Zimbabwe recognizes the right of everyone to adequate food, and as a State Party to the Covenant, agrees to “take appropriate steps to ensure the realization of this right . . .”⁵¹ The Covenant further binds Zimbabwe to work cooperatively with the international community to alleviate hunger within its borders; Article 11 (2) states:

The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international cooperation, the measures, including specific programs, which are needed:

To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources;

Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.⁵²

In 1999, the UN Committee on Economic, Social and Cultural Rights provided comment on the right to food – clarifying State Party duties. The Covenant warns State Parties against discrimination.⁵³

… any discrimination in access to food, as well as to means and entitlements for its procurement, on the grounds of race, color, sex, language, age, religion, political or other opinion, national or social origin, property, birth or other status with the purpose or effect of nullifying or impairing the equal enjoyment or exercise of economic, social and cultural rights constitutes a violation of the Covenant.⁵⁴

Under the Covenant, women and men enjoy equal protection of the guaranteed rights; subsequent comments to the Covenant reaffirm that State Parties may never use food as a weapon or political tool.⁵⁵ Inequitable distribution of the right to food breaches the Covenant.⁵⁶

General Comment 12 defined the right to food, and the correspondent State Party obligations. Broadly, the General Comment characterized the State’s obligation to provide a right to food as tripartite,

[A state has] the obligations to respect, to protect and to fulfill… The obligation to respect existing access to adequate food requires States parties not to take any measures that result in preventing such access. The obligation to protect requires measures by the State to ensure that enterprises or individuals do not deprive individuals of their access to adequate food. The obligation to fulfill (facilitate) means the State must pro-actively engage in activities intended to strengthen people's access to and utilization of resources and means to ensure their livelihood, including food security. Finally, whenever an individual or group is unable, for reasons beyond their control, to enjoy the right to adequate food by the means at their disposal, States have the obligation to fulfill (provide) that right directly. This obligation also applies for persons who are victims of natural or other disasters.⁵⁷

A state violates its obligations as a State Party when it allows or engages in discriminatory distribution practices designed to consolidate control, or further political goals. Furthermore, primary responsibility for preventing and remedying hunger lies with the State Party. Even when financial constraints prevent action, the State Party must lead in seeking international assistance. The General Comment affirms the difference between a state’s inability and its unwillingness to comply with its Covenant obligations. The General Comment states,

Should a State party argue that resource constraints make it impossible to provide access to food for those who are unable by themselves to secure such access, the State has to demonstrate that every effort has been made to use all the resources at its disposal in an effort to satisfy, as a matter of priority, those minimum obligations. … A State claiming that it is unable to carry out its obligation for reasons beyond its control therefore has the burden of proving that this is the case and that it has unsuccessfully sought to obtain international support to ensure the availability and accessibility of the necessary food.⁵⁸

Although Zimbabwe may find itself incapable of providing food to all those in need from its own resources, it retains its leadership obligation to provide food for its people, without discrimination. The comment states that “States 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 right to adequate food.”⁵⁹ To fulfil this obligation, the government must administer the GMB food aid program fairly and without discrimination, regardless of the program’s inadequate capacity.

General Comment 12 further stresses the need for accountability and transparency in implementing national strategies for the right to food.⁶⁰ “Appropriate institutional mechanisms should be devised to secure a representative process towards the formulation of a strategy, drawing on all available domestic expertise relevant to food and nutrition.”⁶¹ The war council devised to implement and oversee the food distribution program reflects the political, rather than humanitarian, nature of Zimbabwe’s food strategy. To the extent that such strategies involve a decentralized approach, the national government remains accountable under the Covenant for the actions of its agents implementing such strategy.⁶² Such accountability includes responsibility for the arbitrary and discriminatory decisions of village heads, youth militias, and other local community leaders who politicize the distribution of food.⁶³

As a member of the United Nations, and as a State Party to the CESCR, Zimbabwe recognizes the right to adequate food for its people, free from discrimination or politics. When it engages in discriminatory distributive practices, and allows rampant corruption and opportunistic abuse, Zimbabwe abrogates its international legal and treaty obligations.

The CESCR also binds donor countries and international humanitarian organizations. They must not politicize aid. Paragraph 37 of General Comment 12 specifically forbids conditional food assistance, and/or embargoes that use food as an economic or political lever:

States parties should refrain at all times from food embargos or similar measures which endanger conditions for food production and access to food in other countries. Food should never be used as an instrument of political and economic pressure.⁶⁴

In fact, parties to the CESCR agree to help other state parties in need. The General Comment reminds States of their commitment to

Take joint and separate action to achieve the full realization of the right to adequate food. … States parties should take steps to respect the enjoyment of the right to food in other countries, to protect that right, to facilitate access to food and to provide the necessary aid when required.⁶⁵

Organizations, such as the WFP also play a special role in setting the example for proper protection of economic and social rights when implementing their programs. Paragraph 40 of General Comment 12 specifically calls upon UN humanitarian agencies to promote and realize the right to food in places where they intervene.⁶⁶

⁵⁰ Art. 25, Universal Declaration of Human Rights, Resolution 217 A (III), December 10, 1948

⁵¹ Art. 11 (1), International Covenant on Economic, Social and Cultural Rights (CESCR), Resolution 2200 A (XXI), 16 December, 1966. Acceded to by Zimbabwe on May 13, 1991.

⁵² Art. 11 (2), CESCR..

⁵³ Art. 3, CESCR.

⁵⁴ ‘The right to adequate food (Art. 11),’ May 12, 1999. E/C.12/1999/5, CESCR General Comment 18 and 37. (General Comments).

⁵⁵ ‘The right to adequate food (Art. 11),’ May 12, 1999. E/C.12/1999/5, CESCR General Comment 37. (General Comments).

⁵⁶ ‘The right to adequate food (Art. 11),’ May 12, 1999. E/C.12/1999/5, CESCR General Comment 26. (General Comments).

⁵⁷ ‘The right to adequate food (Art. 11),’ May 12, 1999. E/C.12/1999/5, CESCR General Comment 15. (General Comments).

⁵⁸ ‘The right to adequate food (Art. 11),’ May 12, 1999. E/C.12/1999/5, CESCR General Comment 17. (General Comments).

⁵⁹ ‘The right to adequate food (Art. 11),’ May 12, 1999. E/C.12/1999/5, CESCR General Comment 36. (General Comments).

⁶⁰ ‘The right to adequate food (Art. 11),’ May 12, 1999. E/C.12/1999/5, CESCR General Comment 23. (General Comments).

⁶¹ ‘The right to adequate food (Art. 11),’ May 12, 1999. E/C.12/1999/5, CESCR General Comment 24. (General Comments).

⁶² ‘The right to adequate food (Art. 11),’ May 12, 1999. E/C.12/1999/5, CESCR General Comment 20. (General Comments).

⁶³ ‘The right to adequate food (Art. 11),’ May 12, 1999. E/C.12/1999/5, CESCR General Comment 19. (General Comments). “Violations of the right to food can occur through the direct action of States or other entities insufficiently regulated by States. These include . . . denial of access to food to particular individuals or groups, whether the discrimination is based on legislation or is pro-active; the prevention of access to humanitarian food aid in internal conflicts or other emergency situations; . . . and failure to regulate activities of individuals or groups so as to prevent them from violating the right of food of others . . .”

⁶⁴ ‘The right to adequate food (Art. 11),’ May 12, 1999. E/C.12/1999/5, CESCR General Comment 37. (General Comments).

⁶⁵ ‘The right to adequate food (Art. 11),’ May 12, 1999. E/C.12/1999/5, CESCR General Comment 36. (General Comments).

⁶⁶ ‘The right to adequate food (Art. 11),’ May 12, 1999. E/C.12/1999/5, CESCR General Comment 40. (General Comments). “The role of the United Nations agencies, including through the . . . UNDAF at the country level, in promoting the realization of the right to food is of special importance. Coordinated efforts for the realization of the right to food should be maintained to enhance coherence and interaction among all the actors concerned, including the various components of civil society.” It further called upon the UN agencies such as UNICEF, the WFP, and the UNDP to cooperate more fully, and focus their efforts with the needs of the recipients in mind, rather than their own narrow mandates.

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October 2003