Global hunger and food insecurity are complicated, messy issues. And although the right to food is a human right grounded in international law, lawyers and activists struggle when trying to document violations of that right. Too many reports lack nuance or a human rights framework, arguing simplistically that people in X country or region are hungry and thus their rights to food have been violated. Conversely, too many human rights advocates unfamiliar with economic and social rights simply avoid discussing the right to food.
There is no easy solution for documenting a complicated right, but I would like to propose a simple framework for how to analyze violations of the right to food. This framework does leave open a gray area where reasonable people will disagree on what constitutes a violation and what corresponding steps a government must take. But hopefully this framework clarifies that, in some cases, it is fairly simple to show if a government is violating the right to food.
Our Starting Point: Human Rights and Government Obligations
Before we begin, let’s quickly review what international law says about governments’ human-rights obligations.
International law has enumerated a number of rights that belong to every person. This makes every person a “rights holder.” And under international law, governments are the “duty bearers”: they have obligations to respect, protect, and fulfill those rights.
The right to food is codified in the International Covenant on Economic, Social and Cultural Rights (ICESCR), and is also guaranteed in a number of other international and regional instruments. So governments that have ratified those documents must respect, protect, and fulfill the right to food. What does this mean?
- To respect the right to food, governments must refrain from impeding existing access to food and productive resources.
- To protect the right to food, governments must ensure that third parties do not deprive people of their existing access to food and resources.
- To fulfill the right to food, governments must take steps to progressively realize people’s right to food – in effect, they must work to strengthen people’s ability to grow or purchase food. In addition, in certain situations when individuals or groups are unable to enjoy the right to adequate food, such as detention, governments must provide food directly.
One of the key ideas in international human rights law is non-discrimination. Governments must meet their rights obligations for all groups of people.
The Framework: A Rough Step-By-Step Guide
Now that we have a basic understanding about government obligations regarding the right to food, let’s talk about how to analyze a situation to determine whether there have been violations of the right.
I’m going to sketch out a basic framework for analyzing potential right-to-food violations. On law school exams, students are often given fact patterns in which they must spot the issues and then analyze their legal implications. I always found it useful to create a generic analytical framework, and this is what I’m providing here. Of course, this framework isn’t the only way to analyze a situation for right-to-food violations, and in some cases there might be a better or more efficient way to do so. But hopefully this helps, either on a theoretical level or for people interested in documenting right-to-food violations.
STEP ONE. Figure out what the situation is, and identify the problem that concerns you. Is the situation/problem that people are starving to death? That there are high levels of malnutrition in region X? That children are more malnourished now than they were 10 years ago? That many farmers have lost their land and thus their ability to grow food?
Note that your following analysis will be very context specific. If you’re documenting a rights abuse and not just undertaking a theoretical exercise, you must also base your analysis on strong research. Strong research includes desk-based research (examining national laws and policies, government statistics, international conventions that the countries have ratified, etc.) and on-the-ground qualitative field research. Some advocates also use solid quantitative research to complement their other research.
STEP TWO. Identify the human rights standard(s) implicated. Is it a lack of access to adequate food? If so, you may be able to make a right-to-food claim.
Human rights are indivisible and interconnected, and many situations implicate a number of human rights. The right to food, for example, is often connected with the right to health, the right to adequate shelter, the right to water and sanitation, and a number of other rights. Since we’re talking about the right to food today, that’s what I’ll focus on in the rest of this framework, but keep in mind that, in many cases, you may want to document violations of a number of other rights as well.
STEP THREE. Determine WHY this situation is occurring. Relatedly, figure out WHO has caused this situation. This is easier said than done, of course, but here are a few follow-up questions you can ask:
- Who is to blame? What was the role of the government? Were any other parties responsible?
- What kind of failure caused this?
STEP FOUR. This depends on your answers to WHO and WHY in Step Three.
(A) If you can show that government action has caused the situation, then you can show a violation of the government’s obligation to respect the right to food. More precisely, if you can show that individuals had access to food or productive resources, and that the government’s action took away or diminished that access to food or resources, then you have a very strong argument that the government has violated the right to food.
(B) If a third party has caused the situation, and the government has failed to prevent it, then you have a violation of the government’s obligation to protect the right to food.
This also raises the interesting question of whether the third party violated any obligations. Traditionally, governments are the entities with human rights obligations. But the international community increasingly recognizes that businesses also have responsibilities towards human rights. Though a responsibility may not rise to the level of an obligation, you can argue that if a corporation has caused the situation, and the government has failed to stop it, then the government has failed in its obligation to protect and the corporation has failed its responsibility to respect. Voila, a violation of the right to food.
(C) If the situation was not caused by a direct government action or by the government’s failure to stop a direct third party action, then you don’t have a failure to protect or respect the right to food, but you may be able to show a failure to fulfill the right to food. Proceed to step five.
STEP FIVE. If you cannot show that the government violated the right to food by failing to respect or protect the right, you may still be able to show that there was a failure to fulfill the right to food. This generally will be much trickier, though. This is the gray area that scares lawyers and leads reasonable people to take opposing positions. This is where, even theoretically, we’ll run into problems.
As mentioned above, governments may not discriminate in fulfilling the human rights of some people over the human rights of others. So the next issue to look for is discrimination or exclusion. Did the government fulfill the right to food for other groups, but not for the group in question? Can you look at your data and disaggregate it to determine whether certain populations – an ethnic minority? persons with disabilities? – are disproportionately suffering from lack of access to adequate food? When you’re talking about the obligation to fulfill, look also at what relevant government programs exist (e.g., food distribution or land reform) and whether the government has excluded certain groups of people from those programs.
All good so far. Even the most traditional of human rights advocates should not have a problem with this framework, because failure to respect or protect a right, or clear discrimination in fulfilling a right, clearly means that the government is not meeting its obligations.
Here is the really tricky part. If you can’t show a failure to respect or protect, and you can’t show clear discrimination or exclusion from government programs, then you have to analyze whether, in this situation, the government should have been doing more to fulfill people’s right to food – i.e., could and should the government have taken more steps to progressively realize the right to food? For example, could the government have implemented more programs? This is where, even theoretically, it’s hard to know how much more a government could or should be doing. Many people don’t want to even go there, afraid of debates on prioritizing rights – if the government spends more on food programs, will it have to take away money from education programs? Or health, housing, infrastructure, and other legitimate government expenditures?
This is a gray area, and unfortunately there is no easy framework for navigating this complex and hazy area. What I will leave you with are three thoughts.
- First, look at the corruption angle. If you can show that the government is spending a huge amount of money on programs meant to address the problem you’ve identified, but that most of the money is being siphoned off because of corruption, then ask whether the government could be doing more simply by taking steps to minimize corruption. Easier said than done, but this is an increasingly important issue to talk about from a human rights perspective.
- Second, look at the process angle. Human rights are about empowering people: providing people with rights, enumerating government obligations, and creating processes for accountability. Empowerment also means participation, though, and to fulfill the right to food, governments must allow people to participate in determinations of how that happens. So look at what steps the government is taking to include people in its decision-making processes, and whether it takes people’s concerns into account.
- Third, consider a budget analysis. The ICESCR requires that governments that have ratified the Covenant take steps to the maximum of their available resources to fully realize the codified rights. If you think that the government’s budget is one of the main reasons why the government is failing to fulfill individuals’ right to food, then analyzing the budget would be a helpful step. This may be an uncomfortable undertaking for many activists and lawyers; for more information about budget work and the right to food, see the FAO’s “Budget Work to Advance the Right to Food” (2009).
It’s easy to provide a framework, but much harder to apply it. Hunger and food security generally have many contributing factors, and it is often very hard to untangle their immediate and underlying causes. Situations on the ground can differ wildly from what you read in the news or in reports, and the more you research, the more complicated things may seem. But it is possible to articulate governments’ legal obligations regarding the right to food, and sometimes it’s also possible to document how a government has failed to meet its obligations. My hope is that this framework provides a helpful starting point for people who are concerned about food insecurity – and for those interested in holding governments accountable for violating the human right to food.