1. Committee on Economic, Social and Cultural Rights, “General Comment 12: The Right to Adequate Food,” Para. 6, UN Document E/C.12/1999/5 (May 12, 1999).

2. Id. Accessibility comprises both economic and physical aspects; physical accessibility means that all individuals, including those who are physically vulnerable, can access food.

3. International Covenant on Economic, Social and Cultural Rights, Arts. 11.1 and 11.2.

4. Governments that have signed but not ratified international instruments are held to different standards of obligations. However, if an international law has reached such a widespread level of acceptance that it constitutes customary international law, governments must abide by it regardless of their ratification status. Whether the right to food meets that standard is arguably debatable. The United States has signed but not ratified the International Covenant on Economic, Social and Cultural Rights, which is the main instrument establishing the right to food.

5. Historically, only governments were deemed to have human rights obligations. However, there is a growing international consensus that non-government entities also have responsibilities in respect of human rights. Thus, at a minimum, we can say that the private business sector currently has responsibilities, if not obligations, regarding the right to food.

6. Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, available at //www2.ohchr.org/english/bodies/cescr/docs/A-RES-63-117.pdf.

7. For more information on the Universal Periodic Review, visit the website of the Office of the High Commissioner for Human Rights: //www.ohchr.org/en/hrbodies/upr/pages/BasicFacts.aspx.

8. For more information on the UN Special Rapporteur on the right to food, and to view his official and unofficial reports, visit www.srfood.org.

9. For examples of the right to food in national laws, as well as an explanation of when international treaties are directly applicable and when they require national legislation to implement them, see Lidija Knuth and Margret Vidar, Constitutional and Legal Protection of the Right to Food around the World (FAO, Rome 2011), available at www.fao.org/righttofood/publi11/constitutional_2011.pdf.

10. South African Constitution, Art. 27.

11. While the Committee on Economic, Social and Cultural Rights has noted that States Parties to the Covenant on Economic, Social and Cultural Rights have a core obligation under the right to food to mitigate and alleviate hunger, South Africa has not ratified the Covenant. The South African Constitutional Court has not yet indicated whether there is a minimum core regarding the right to food, though the Court appears to have rejected the concept of minimum core obligations for economic, social and cultural rights in decisions on the right to health, the right to housing, and the right to water. See for example Peter Danchin, “A Human Right to Water? The South African Constitutional Court’s Decision in the Mazibuko Case,” EJIL Blog (Jan 2010), //www.ejiltalk.org/a-human-right-to-water-the-south-african-constitutional-court%E2%80%99s-decision-in-the-mazibuko-case/.

12. Indian Constitution, Art. 47.

13. People’s Union for Civil Liberties v. Union of India & Ors. (S.C. 2001), Writ Petition (Civil) No. 196/2001.

14. For more information about the right to food in India, including Supreme Court orders and guides to the issues, visit the website of the Right to Food Campaign: www.righttofoodindia.org.

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Part II: Indirect Impacts of Human Rights Law on Food Security

The right to food goes beyond establishing governmental obligations and accountability mechanisms: it also helps to strengthen food security in less direct ways. The right to food clarifies what true global food security would encompass. In addition, it provides a framework for analyzing and addressing relevant issues and laws.

The normative content of the right to food illuminates what true global food security would encompass. It would be more than an aggregate food supply that is greater than food demand. That is necessary, but not sufficient. True global food security would include an environment where all people have access to resources to produce their own food, or access to livelihoods that allow them to purchase sufficient food. Efforts to improve true global food security would ask us to go beyond merely maximizing global agricultural production, and to also address the real obstacles that block people’s current and future access to food. In this way, the right to food provides a conceptual bridge between food security and food sovereignty.

Aside from expanding our definition of what constitutes global food security, the right to food provides a framework that assists in analyzing issues and laws, as well as facilitating solutions. National and international laws shape how society organizes itself, and many areas of law can have important impacts on food security, such as antitrust law, intellectual property rights, or food safety laws. Laws thus should be designed and amended using a right-to-food framework. For governments that have ratified international instruments protecting the right to food, this approach is non-negotiable.

To explore the indirect impacts of human rights law on global hunger, let’s look at trade laws and land rights. Both areas of law illustrate how using a right-to-food perspective can help direct governments’ efforts to improve true global food security.

Trade Law and the Right to Food

Trade law, which is dominated by the World Trade Organization, affects food security. Despite an ideological debate about whether free trade theoretically improves or worsens food security (not necessarily food sovereignty), it is difficult to trace the exact impacts of trade rules on food security, because such rules are just one factor in how countries act. Yet, examining the global trade regime from a right-to-food perspective, it is likely that the current regime limits the ability of some developing countries to address hunger or improve peoples’ access to food.

From a right-to-food perspective, two main problems arise at the intersection of international trade laws and agriculture. [1] First, the WTO’s approach is predicated on the belief that more free trade is always better, and that improved access to international markets is always an improvement. Based on this belief, simply increasing international trade in agricultural products is sometimes promoted as a way to strengthen global food security.

However, trade and investment agreements arguably limit the policy space that developing countries have to address food security issues. Because the parameters can be vague, countries faced with threats of economic sanctions may decide to not undertake policies that would open them up to retaliation under the WTO.[2] Theoretically, trade agreements must be interpreted, to the extent possible, as compatible with international law and the rules of any applicable treaty, including human rights treaties. [3] However, despite this method of reconciling international agreements, and notwithstanding the growing levels of accountability surrounding right-to-food obligations, there are still no robust human rights accountability mechanisms that rival the dispute procedures of the global trade regime. Moreover, WTO dispute procedures generally do not address human rights issues. [4] Thus, countries that face conflicting obligations in respect of human rights and trade may find it easier to honor trade commitments over human rights obligations. As the UN Special Rapporteur on the right to food has argued, these potential conflicts can lead to a possible “chilling effect.”[5]

A greater reliance on trade can have other negative impacts on food security and food sovereignty as well. For example, it may lead some countries to provide unequal support in the agricultural sector, investing less in domestic agriculture that is not geared toward the export market. [6] Decreasing the support for small-scale farmers can hurt the farmers’ own food security as well as the country’s general ability to produce sufficient food.

A second problem with international trade in agricultural products is that, although the global trade regime was designed to promote more free trade among nations, it instead facilitates an imbalanced situation where highly subsidized Western farmers compete unfairly with small-scale, unsubsidized farmers in developing countries. This distribution of subsidies, and the ensuing trade, is problematic from a right-to-food perspective. Subsidies and other support for small-scale farmers in developing, agrarian-based countries can be crucial to their ability to feed themselves and others, yet they are relatively rare. Conversely, the existing agricultural subsidies in developed countries are immense, and can have severely negative impacts on global food security.

For small-scale farmers in developing countries who hope to export their agricultural products, access to international markets is critical. Yet commodities from subsidized Western farmers can depress prices on the international market, thereby lowering the price that small-scale farmers receive. This can have impoverishing effects, and can take away small-scale farmers’ ability to purchase sufficient food for themselves and their families.

At the same time, small-scale farmers in least-developed countries who simply want to sell their food at local markets may fare no better, as subsidized Western farmers can flood markets in developing countries with cheap food, driving down prices and rendering small-scale farmers unable to compete on the local market. Although this can lead to cheaper food for the urban poor and for rural poor who purchase food, it can be devastating for small-scale farmers who subsequently cannot earn their livelihoods on local markets. At the individual level, this can create food insecurity within farmers’ homes. And food insecurity in farmers’ homes can mean widespread food insecurity in rural areas. This is one factor that leads to one of the most ironic aspects of world hunger, which is that approximately 70% of the world’s food insecure are small-scale farmers and agricultural laborers. And at a national level, the devastation of small-scale farming can turn whole areas away from agricultural production, rendering countries too dependent on food imports – or food aid.

The right-to-food framework, and governments’ obligations that exist under it, point to three measures that could strengthen people’s access to food by improving how the global trade regime functions. These steps are not grounded in a belief that international trade is unnecessary, but rather that, for trade laws to address hunger effectively, they must benefit those who are most food insecure, in particular, small-scale farmers and agricultural workers.

First, governments must implement their existing obligations under trade agreements in compliance with their obligations regarding the right to food. This requires greater coordination between government entities responsible for trade issues and those responsible for human rights compliance, as well as sustained government attention on food security issues. Governments would be better equipped to do this by preparing national strategies on realizing the right to food.[7] Aside from assisting governments’ efforts to address hunger, these strategies would also highlight actions that governments must take to protect the right to food in respect of international trade. In cases where the pursuit of the right to food appears to conflict with trade obligations, governments must honor their pre-existing human rights obligations.

Second, WTO members must ensure that trade agreements provide developing countries sufficient policy space to comply with right-to-food obligations. For example, developing countries should not be restrained from protecting against import surges or providing their small-scale farmers with necessary support. In addition, WTO members should not push least-developed countries to rely excessively on international trade to obtain food security, acknowledging that greater access to markets will not be a panacea.

Third, governments negotiating at the WTO must refrain from undertaking new trade obligations that would undermine their ability to respect, protect, and fulfill the right to food. To do this, governments should conduct a human rights impact assessment before concluding any new trade and investment agreement, examining the potential effects on governments’ capacity to meet their human rights obligations and on individuals’ abilities to enjoy their rights.[8] These assessments are important for both developed and developing countries, to prevent them from making demands or concessions during negotiations that would preclude any involved party from complying with its human rights obligations.

Experts have identified best practices for conducting human rights impact assessments. Impact assessments should be independent, transparent, and inclusive, incorporating the voices of individuals whose human rights – including the right to food – might be affected by trade agreements. [9] For our purposes, impact assessments should seek the participation of farmers, farmworkers, and women, among other groups. If an assessment finds that incompatibilities exist between potential trade commitments and human rights obligations, then governments must have the time and space to address the conflict. The range of potential responses should include amending or terminating the agreement or inserting safeguard mechanisms.[10]

Using a right-to-food perspective in the area of trade law exemplifies the potential indirect impacts of the right to food. It highlights existing problems with the trade regime in terms of food security, but also suggests how governments can begin to align their trade obligations with their right-to-food obligations. Under international law, doing so is not optional: governments’ “first responsibility” is to protect and promote human rights. [11]

Land Rights and the Right to Food

Land rights is another area of law where using a right-to-food perspective would assist governments in improving true food security. Although there is no internationally recognized human right to land,[12] ensuring access to land and tenure security is vital for realizing existing human rights, including but not limited to the right to food.

Access to productive resources and tenure security is important for farmers, regardless of whether they produce for export markets, local markets, or simply for subsistence. Yet in developing countries, farmers cultivating small plots of land often have no formal rights to land, leaving them vulnerable to evictions. This tenure insecurity has implications for farmers’ ability to sustainably produce sufficient food or to earn a livelihood. More broadly, widespread tenure insecurity has implications for overall food security in rural areas.

There are other groups for whom access to productive resources is equally important, and equally tenuous. Hired agricultural workers frequently do not have access to land for personal use, and thus are unable to supplement their meager wages by growing food for their own consumption. Pastoralists, fisherfolk, and individuals who live off of forests are also dependent on productive resources, yet often have insecure access to land and resources. Altogether, the vast majority of the world’s food insecure depend on these productive resources for their food or livelihood.

Although there is growing international consensus that improving access to land is critical for ensuring food security, increasing commercial pressures on land render many individuals and groups even more vulnerable to evictions. The past decade has seen a notable increase in “land grabs”: large-scale land acquisitions, either through purchases or long-term leases.[13]Much of the initial media attention focused on governments or sovereign wealth funds, particularly those from the Gulf states or Asia, that are acquiring large tracts of land in developing countries in order to have a guaranteed supply of food. Yet foreign governments are not the only force behind these acquisitions. Private companies have driven many of these purchases and leases, driven by greater demand for biofuels and other natural resources, as well as for speculative reasons. In many cases, the parcels of land are located in countries with extreme food insecurity problems. Ethiopia, for example, has offered millions of hectares of land to foreigners at very low costs, while remaining one of the largest recipients of food aid in the world. [14]

These increased pressures on land can have consequences for individuals and for countries regarding food security. First, these pressures can negatively affect people who depend on the land for their livelihoods. Though acquired land is often described as unused or underutilized, in many cases there are in fact farmers or pastoralists who depend on the land, but who may not have property rights to it. Their eviction from the land, sometimes without compensation or opportunity for recourse, negatively affects their food security. Second, the purchase or leasing of large tracts of land can decrease the providing country’s ability to produce sufficient food for individuals on its own territory. Some land acquisitions are coupled with agreements that most or all of the food produced will be exported, while other acquisitions are made for speculative purposes and so the land is not put into immediate production. These situations can have the effect of displacing people’s livelihoods while also diminishing the amount of food available locally.

The right-to-food framework helps us understand governments’ obligations in the area of land rights, and suggests actions that governments should take regarding pressures on land in order to improve global food security.[15]

As noted in Part I, the normative content of the right to food underscores the importance of individuals’ access to productive resources. Under the first two prongs of the respect, protect, and fulfill framework, governments have two main obligations regarding land rights and food security. Governments must respect existing access to land that supports people’s ability to grow or purchase food; they must also protect this access from the acts of third parties, including foreign governments and private investors seeking to acquire large tracts of land.

These obligations suggest several steps that governments should take. First, at the national and local levels, governments should, when necessary, strengthen the tenure security of individuals and groups who already depend on their access to land for their food security. A human-rights-based approach requires that governments do this in a participatory and inclusive manner. Improvements to tenure security should be tailored to the existing situation. In some cases, titling schemes might not be the best solution: the establishment of land titles can entrench historical wrongs, weaken the rights of certain groups, or create a market for land rights that pressures farmers to sell their land without having alternative livelihood options. [16]

Second, governments must take steps at the national level to ensure that any large-scale land acquisitions do not infringe on individuals’ or groups’ right to food. Doing this is not simply a question of best practices, as suggested by the efforts of international financial institutions to devise “guidelines for responsible investment”; it is a requirement under existing human rights obligations. It is also an obligation of all governments involved: not only of governments providing land, but also those acquiring land. Governments should create mechanisms to screen potential land investments for impacts on human rights and to monitor investments that have already been made. When land investments are deemed necessary but infringe on individuals’ access to land or other resources, governments must ensure that those individuals are properly and promptly compensated in a manner that respects their human rights. [17]

Third, at the international level, governments should work together on efforts to improve governance in the area of land rights and food security. This includes implementing the newVoluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security, which have emerged from an intergovernmental process led by the Food and Agricultural Organization of the UN. [18] Of course, this comes with the caveat that, even if international guidelines are voluntary, human rights obligations are not, and governments must not use the mantle of voluntariness to neglect their international obligations.

Aside from duties to respect and protect the right to food, governments must also take steps to fulfill the right to food. In the context of land rights, this suggests that, when necessary, governments should work to progressively strengthen people’s access to productive resources, including, in some cases, undertaking land reform. Yet these efforts must go beyond simple land redistribution, which on its own is not sufficient and could even be harmful to food security. To be effective in land redistribution, governments need to combine improved access to land with support in using it productively.

Just as with trade law, the area of land rights affects food security, and benefits from a right-to-food perspective. The right-to-food framework illustrates actions that governments should take in order to protect, respect, and improve people’s access to productive resources and, ultimately, their access to food.

The Right to Food – A Tool for Moving Closer to True Global Food Security

Trade laws and land rights are simply two of many areas of law where using a right-to-food perspective is necessary to ensure that governments uphold their human rights obligations. In each area, the right to food suggests how to reshape laws and policies to bring us closer to true global food security.

The right to food provides us with a starting point, which is to provide tools for people to hold governments accountable for their actions affecting food security, and a goal, which is to ensure that all people have access to food or the ability to purchase food that is adequate, nutritious, culturally appropriate, and sustainable. And in an age of debate about how to feed the world, amid a chorus of voices clamoring for more unsustainable and industrialized agriculture, the right to food reminds us that improving true global food security is about more than simply maximizing production. True global food security is about access – and dignity.

1. A different yet related issue, which this article does not address, is the WTO’s intellectual property rights regime, codified in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). Intellectual property rights have significant ramifications for human rights, including the right to food. For example, rules on intellectual property rights can shape farmers’ access to seeds and inputs.

2. See for example the Report of the UN Special Rapporteur on the right to food, “Addendum: Mission to the World Trade Organization,” UN Doc. A/HRC/10/5/Add.2, Para 34 (June 25, 2008) [“Mission to WTO Report”].

3. The Vienna Convention on the Law of Treaties requires that treaties be interpreted taking into account “any relevant rules of international law applicable in the relations between the parties.” Art. 31(3)(c). Under the WTO dispute settlement system, provisions of trade agreements are clarified “in accordance with customary rules of interpretation of public international law.” WTO Understanding on rules and procedures governing the settlement of disputes, Art. 3.2. See also UN Special Rapporteur on the right to food, “Mission to WTO Report,” supra note ii at Para 35 and footnote 30.

4. Indeed, human rights considerations have only been invoked once in a WTO dispute settlement procedure, and they were dropped before the panel could investigate. The right to food has never been invoked in a WTO dispute procedure. Of course, it is debatable whether invoking human rights claims in trade dispute settlement mechanisms is even desirable. Although there are potential benefits, only governments can bring complaints in the WTO dispute settlement system – thereby precluding people whose rights are affected from doing so – and WTO adjudicators might not have the proper background to rule on human rights issues. For a more detailed discussion of the arguments for and against invoking the right to food within WTO dispute settlement procedures, see Boyan Konstantinov, “Invoking the Right to Food in the WTO Dispute Settlement Process: The Relevance of the Right to Food to the Law of the WTO,” Accounting for Hunger: The Right to Food in the Era of Globalisation. Eds. Olivier De Schutter and Kaitlin Y. Cordes. Oxford: Hart, 2011.

5. UN Special Rapporteur on the right to food, “Mission to WTO Report,” supra note ii at Para. 34.

6. The UN Special Rapporteur refers to this as the “dualization of the farming system.” Id. At Para. 35.

7. The Committee on Economic, Social and Cultural Rights notes that States Parties should adopt national strategies on food and nutrition security, to assist the implementation of obligations. The Committee suggests how governments should create such strategies, and enumerates the issues that strategies should address. Committee on Economic, Social and Cultural Rights, “General Comment 12: The Right to Adequate Food,” Paras. 21-28, UN Document E/C.12/1999/5 (May 12, 1999).

8. Impact assessments should be finished in sufficient time to influence negotiation outcomes. In addition, governments should conduct human rights impact assessments on a consistent basis after new trade agreements. Such ex post impact assessments would help governments determine the actual impacts of trade on human rights, as well as devise necessary corrective measures.

9. Berne Declaration, Canadian Council for International Co-operation & Misereor (2010), “Human Rights Impact Assessment for Trade and Investment Agreements: Report of the Expert Seminar, June 23-24, 2010, Geneva, Switzerland,” at 3, 5, 13.

10. The UN Special Rapporteur suggests five possible options: terminating, amending, or inserting safeguards in an agreement; providing compensation; and adopting mitigating measures. UN Special Rapporteur on the right to food, Addendum, “Guiding principles on human rights impact assessments of trade and investment agreements,” Section III, UN Doc A/HRC/19/59/Add.5 (December 2011). In addition, governments can use impact assessments to identify policies that could be undertaken simultaneously with trade agreements to protect vulnerable groups and spread any benefits of trade throughout society. However, this is easier said than done, and many developing countries are constrained from effectively implementing such domestic policies. Olivier De Schutter, “International Trade in Agriculture and the Right to Food,” (Friedrich Ebert Siftung, November 2009), at 19.

11. “Human rights and fundamental freedoms are the birthright of all human beings; their protection and promotion is the first responsibility of Governments.” Vienna Declaration and Programme of Action, World Conference on Human Rights, Section 1(1), UN Document A/CONF.157/23 (1993).

12. While there is no internationally recognized human right to land, there are international laws that establish certain rights to land for particular groups of people: for example, indigenous people.

13. As the World Bank stated in 2011, “the demand for land has been enormous. Compared to an average annual expansion of global agricultural land of less than 4 million hectares before 2008, approximately 56 million hectares worth of large-scale farmland deals were announced even before the end of 2009.” Klaus Deininger et al., “Rising Global Interest in Farmland: Can It Yield Sustainable and Equitable Benefits?” (World Bank 2011), available at//siteresources.worldbank.org/INTARD/Resources/ESW_Sept7_final_final.pdf, at xiv.

14. Human Rights Watch notes that Ethiopia leased at least 3.6 million hectares of land between 2008 and 2011, and currently is offering 2.1 million hectares more through its land bank for agricultural investment. //www.hrw.org/news/2012/01/16/ethiopia-forced-relocations-bring-hunger-hardship .

15. Of course, using a right-to-food framework only gives us a partial view of governments’ obligations regarding land; additional obligations may exist based on governments’ other human rights commitments, such as the right to adequate housing.

16. Even the World Bank noted in 2008 that, despite its earlier efforts to promote titling, individual titling “can weaken or leave out communal, secondary, or women’s rights” and “can be used for land-grabbing by local elites and bureaucrats.” World Development Report 2008: Agriculture for Development, World Bank, 138-39 (2008), at 139.

17. International law provides stronger protections for indigenous people’s land rights, generally prohibiting their forced removal from land. Relocation can only occur as an “exceptional measure” and requires the affected individuals’ “free and informed consent,” as well as full compensation, including, where possible, the provision of equal land elsewhere. (In certain cases where consent is not given, international law allows for relocation anyway so long as certain procedural restrictions are met.) ILO Convention No. 169 (1989) concerning Indigenous and Tribal Peoples in Independent Countries, Arts. 13-19. These protections suggest guidelines for how governments could treat the land rights of non-indigenous people as well.

18. A final draft of the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security can be accessed at //www.fao.org/fileadmin/user_upload/nr/land_tenure/pdf/VG_en_Final_March_2012.pdf.