IGWG RTFG INF/1

Table of Contents

I. Introduction

II. Treaties, Declarations and Customary International Law

A. International Covenant on Economic, Social and Cultural Rights

General Comments

Role of FAO in the ICESCR

B. UN Charter and Universal Declaration of Human Rights

C. Right to Food as Customary International Law

III. Legal Basis for Voluntary Guidelines

A. World Food Summit

B. Mandate of the IGWG

C. Nature of the Voluntary Guidelines

IV. Conclusion

Table of Contents

I. Introduction

1. The World Food Summit: five years later decided on the elaboration of voluntary guidelines to support the efforts of Member States towards the progressive realization of the right to adequate food in the context of national food security (hereinafter referred to as Voluntary Guidelines). The main provision of international law concerning the right to food is contained in Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).¹ This information paper sets out some considerations for determining the legal basis and legal implications of the voluntary guidelines for States that have ratified the ICESCR, to which there are currently 148 State Parties, and for those that have not ratified this treaty.

II. Treaties, Declarations and Customary International Law

2. The Vienna Convention on the Law of Treaties² defines a treaty as "an international agreement concluded between States in written form and governed by international law . . ." (Art. 2(1)(a)). In contrast, declarations, resolutions and other non-binding instruments may encompass strong political commitments or moral obligations, even though they are not legally binding. Non-binding instruments may serve the parties to a treaty to authoritatively interpret its terms, resolving any ambiguities that may exist. A non-binding instrument may also be adopted as a precursor to a treaty.
3. The Voluntary Guidelines are not meant to be legally binding. However, they may have a strong recommendatory force for States that are already bound by provisions of international law, insofar as the Voluntary Guidelines provide interpretation of such legal norms and guidance for their implementation.

A. INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

4. As noted above, 148 FAO and UN Member States have ratified the ICESCR. By ratifying the ICESCR, a State Party assumes the obligation to take steps "to the maximum of its available resources" in order to achieve "progressively the full realization" of the rights recognized in the ICESCR (Art. 2). The ICESCR requires States Parties to submit "reports on the measures which they have adopted and the progress made in achieving the observance of the rights recognized herein." (art. 16(1)). The ICESCR itself did not establish a special committee to review the reports; it merely stipulated that these reports are to be submitted to the UN Economic and Social Council (ECOSOC). ECOSOC adopted a series of resolutions in this regard that culminated in the establishment of the Committee on Economic, Social and Cultural Rights (CESCR) in 1985.³

General Comments

5. The CESCR has used its General Comments and analyses of State reports to clarify the meaning of ambiguous provisions of the ICESCR, thus providing the international community with analytical interpretations of the normative content of economic, social and cultural rights.
6. General Comments are addressed to the State Parties in general and are designed to provide guidance to them in discharging their reporting obligations under the ICESCR. The General Comment has evolved into an instrument in which the CESCR spells out its interpretation of different provisions of the ICESCR. General Comments are relied upon by the CESCR in evaluating States’ compliance with their obligations under the ICESCR. General Comments are now, as a rule, analytical and frequently address difficult issues of interpretation and policy. Over time, General Comments have become authoritative guideposts for the interpretation and application of the ICESCR.
7. The CESCR General Comment 3 (1990),⁴ points out that "while the Covenant provides for progressive realization and acknowledges the constraints due to limits of available resources, it also imposes various obligations, which are of immediate effect." Among these, the CESCR singles out two in particular: the undertaking of the States Parties to guarantee that the rights set out in the ICESCR will be exercised without discrimination; and the undertaking in Article 2(1) "to take steps." Regarding the undertaking to take steps, the CESCR notes that although "the full realization of the relevant rights may be achieved progressively, steps towards that goal must be taken within a reasonably short time after the Covenant's entry into force for the States concerned."
8. General Comment 12 was adopted by the CESCR in 1999, in part as a response to objective 7.4 of the World Food Summit Plan of Action. It includes in its definition of the right to adequate food the requirement for physical and economic access at all times to adequate food or means for its procurement. Furthermore, the CESCR considers that the core content of the right to adequate food implies: (a) the availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances and acceptable within a given culture; and (b) the accessibility of such food in ways that are sustainable and that do not interfere with the enjoyment of other human rights. While acknowledging that the right to adequate food should be realized progressively, General Comment points out that States have a core obligation to take action to ensure that, at the very least, people under their jurisdiction have access to the minimum essential food that is needed to ensure their freedom from hunger
9. It is worth noting that the UN Commission on Human Rights and the UN General Assembly have welcomed⁵ the work of the CESCR, including its General Comment 12. Similarly, the FAO Committee on World Food Security (CFS) welcomed General Comment 12 as an important step in implementing Objective 7.4 of the World Food Summit Plan of Action⁶.
10. A review of the practice of States in reporting to the CESCR shows that general comments are normally taken into account. Furthermore, during the second session of the IGWG in October 2003, a number of countries referred to General Comment 12 as constituting the most complete and appropriate interpretation of the right to food.⁷

Role of FAO in the ICESCR

11. The Voluntary Guidelines to be adopted within the framework of FAO may be linked to the ICESCR pursuant to several articles of the Covenant, in which a strong role for specialized agencies in promoting implementation of the ICESCR is foreseen. Article 18 provides that ECOSOC may arrange to receive reports by such agencies on, inter alia, "the particulars of decisions and recommendations regarding progress made in achieving the observance of the provisions of the Covenant falling within the scope of their activities." Article 22 additionally provides that specialized agencies may decide, "each within its field of competence, on the advisability of international measures likely to contribute to the effective progressive implementation" of the ICESCR, based upon information brought to their attention by ECOSOC.
12. Finally, in Article 23, States Parties to the ICESCR agree that international action to achieve the rights recognized therein includes, inter alia the conclusion of additional conventions and the adoption of recommendations. Thus, the States Parties to the ICESCR have consented to the adoption of further international instruments including by specialized agencies within the field of their competence. Good faith compliance with the ICESCR would suggest that the States Parties owe due regard to any Voluntary Guidelines that are adopted in this context.

B. UN CHARTER AND UNIVERSAL DECLARATION OF HUMAN RIGHTS

13. All members of the United Nations have ratified the UN Charter and thus pledged to act individually and in cooperation with the Organization to promote, inter alia, higher standards of living and universal respect for and observance of human rights and fundamental freedoms (Art. 55). The Charter authorizes the ECOSOC to "make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all." (Art. 62(2)) According to Article 1 (3) of the Charter, one of the purposes of the United Nations is to “achieve international cooperation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religtion”. The Universal Declaration of Human Rights (UDHR), which refers to the right to food in Art. 25,⁸ is frequently invoked as enunciating the human rights obligations of UN Member States. It may be argued that the UN's consistent reliance on the UDHR when applying the human rights provisions of the UN Charter compels one to conclude that the Declaration has come to be accepted as an authoritative interpretation of these provisions. The Member States of the UN would have agreed that they have an obligation under the Charter to promote "universal respect for, and observance of" the rights which the UDHR proclaims, thus including the right to food. ⁹
14. Among non-binding instruments, declarations generally carry particular weight. They often restate norms and principles that already exist in customary law.¹⁰ The continuous and consistent reference to the UDHR provisions on the right to food by the UN General Assembly and the Commission on Human Rights, also add to the status of the right to food in international law. Recent resolutions reaffirm the right of everyone to have access to safe and nutritious food, consistent with the right to adequate food and the fundamental right of everyone to be free from hunger so as to be able to fully develop and maintain their physical and mental capacities.¹¹ Different aspects of the right to food have also been recognized in declarations and plans of action resulting from international conferences.¹²

C. RIGHT TO FOOD AS CUSTOMARY INTERNATIONAL LAW

15. The right to food as customary international law depends upon finding sufficient state practice and opinio juris to establish the rule as one that is binding on all states. Custom as a general practice accepted as law requires both elements: the practice of states over time and the manifestation of conviction that the practice is obligatory. Treaties and other normative instruments can be utilized to show the existence of customary international law.¹³ In this respect, it has been noted that “the right to food has been endorsed more often and with greater unanimity and urgency than most other human rights, while at the same time being violated more comprehensively and systematically than probably any other right.”¹⁴ There are many historical examples of societies recognizing either the duty of governments to provide food or the entitlement of people to food and nutrition.¹⁵ The right to food is widely recognized in constitutional law¹⁶ and in numerous international texts, some pre-dating the United Nations. The League of Nations adopted a Declaration on the Rights of the Child in 1924 which stated that mankind owes the child the best that it has to give and that “the child that is hungry should be fed.” (para 2).¹⁷
16. Among texts of the United Nations, the UDHR goes beyond a right to be free from hunger, to establish a right to food adequate for health and well-being (Art. 25). The ICESCR contains both “the right to an adequate standard of living, including food" (Art. 11(1) and “the fundamental right of everyone to be free from hunger” (Art. 11(2)). General Comment 12 of CESCR calls the second an "absolute, a minimum standard," and in this respect it can be argued that it reflects customary international law, while the first is to be progressively realized according to resources. Notably, the right to freedom from hunger is the only right that is qualified as “fundamental”, both in the ICESCR and in the International Covenant on Civil and Political Rights. The latter implies a right to food as part of the inherent right to life in Art. 6.¹⁸ The nutritional aspects of the right to food also have a place in the Convention on the Rights of the Child (Arts. 24 and 27) and in the Convention on the Elimination of All Forms of Discrimination against Women (Arts. 12 and 14).
17. The 1993 Vienna Declaration and Programme of Action affirmed that “food should not be used as a tool for political pressure” ¹⁹, and this has been repeated time and again in several resolutions by the UN General Assembly and the Commission on Human Rights cited above. In the Universal Declaration, Participating States unequivocally summed up their views on the Eradication of Hunger and Malnutrition of the World Food Conference: “Every man, woman and child has the inalienable right to be free from hunger and malnutrition in order to develop fully and maintain their physical and mental facilities.”²⁰ Similarly, the UN General Assembly has reaffirmed "that the right to food is a universal right which should be guaranteed to all people…"²¹
18. In the context of armed conflict, consistent State practice and opinion juris exist to prohibit the use of food deprivation as a weapon of warfare²², and there is also a duty to refrain from interfering with food destined for those threatened with hunger. The starvation of civilians as a method of warfare is prohibited in both international²³ and non-international armed conflict.²⁴ That prohibition is violated not only when denial of access to food causes death, but also when the population suffers hunger because of deprivation of food sources or supplies. The prohibition of starvation is elaborated upon in provisions prohibiting attacks against, or destruction of, items necessary for the survival of the civilian population, including foodstuffs and drinking water. The United Nations Security Council has reiterated that individuals impeding food deliveries during armed conflicts may be held individually responsible in Somalia and the former Yugoslavia.²⁵ Further evidence is seen in the fact that under the 1998 Rome Statute of the International Criminal Court, intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival is considered a war crime in international armed conflict.²⁶ More generally, the basic norms of international humanitarian law applicable in armed conflicts have been considered by the International Court of Justice as “intransgressible” in character.²⁷ Based on this statement by the Court, the International Law Commission has considered that these norms may give rise to obligations of peremptory character that are not subject to derogation.²⁸
19. The extent to which these texts give rise to legal commitments must be considered in the light of the UN Charter, to which all states are party, and general international law. In practice declarations are viewed as persuasive evidence of the existence and interpretation of rules of international law and contribute to the formation of new rules, influence the practice of States and organizations and legitimate claims and justifications in international relations.²⁹ Marshalling all the evidence, although there are dissenting opinions, the majority of commentators assert that “under international law there is currently found, minimally a treaty right³⁰ conjoined with a customary right to be free from hunger.”³¹
20. There is some contention as to whether the right to food is customary international law, and what the content of that norm would be. However, given that the Voluntary Guidelines are addressed to all FAO and UN Member States to promote implementation of the right to food as contained in numerous international treaties and as part of the obligations of United Nations Member States, pursuant to the Universal Declaration of Human Rights, the customary nature of the right to food could be left aside.

III. Legal Basis for Voluntary Guidelines

A. WORLD FOOD SUMMIT

21. The World Food Summit in 1996 adopted the Rome Declaration on World Food Security and the World Food Summit Plan of Action. The Rome Declaration reaffirmed the right of everyone to have access to safe and nutritious food, “consistent with the right to adequate food and the fundamental right of everyone to be free from hunger”. In the Plan of Action, Objective 7.4 is “to clarify the content of the right to adequate food and the fundamental right of everyone to be free from hunger as stated in the International Covenant on Economic, Social and Cultural Rights and other relevant international and regional instruments.” In addition, Objective 7.4 urged States that have not yet done so to ratify the ICESCR, and all Governments to make every effort to implement it.³² The links between the concept of the right to food in the World Food Summit documents and the International Covenant on Economic, Social and Cultural Rights (ICESCR) were thus clearly established
22. Within the United Nations human rights system, both UN Charter-based bodies and Treaty bodies³³ responded to this call by the World Food Summit. The Committee on Economic, Social and Cultural Rights³⁴ (CESCR), which monitors implementation of ICESCR, adopted General Comment 12 on the Right to Adequate Food. Among the Charter-based bodies, both the Commission on Human Rights and the Sub-Commission on the Promotion and Protection of Human Rights³⁵ have undertaken studies on the Right to Food, with the Commission on Human Rights having appointed a Special Rapporteur on the topic who reports both to the Commission and to the General Assembly.³⁶ The links between the World Food Summit and the various human rights instruments have thus been further strengthened.

B. MANDATE OF THE IGWG

23. The Declaration adopted by the World Food Summit: five years later invited the FAO Council to “establish … an Intergovernmental Working Group, with the participation of stakeholders, in the context of the WFS follow-up, to elaborate, in a period of two years, a set of voluntary guidelines to support Member States’ efforts to achieve the progressive realisation of the right to adequate food in the context of national food security”³⁷. The reference to Member States in the Declaration implies that the Voluntary Guidelines shall apply to all FAO Member States. Resolutions adopted by the General Assembly³⁸ and the United Nations Commission³⁹ on Human Rights and its Sub-Commission also include a reference to “Member States” that strongly suggest that the Voluntary Guidelines are to be addressed to all FAO (and UN) Membe States. The Working Group is open to the participation of all FAO and UN members.⁴⁰ This clearly suggests that the Voluntary Guidelines are intended for all States and not only for States Parties to the ICESCR.
24. The wording of the World Food Summit documents refers to the ICESCR with regard to the content of the right to adequate food and the fundamental right to be free from hunger. The implication of this could be that, while the Voluntary Guidelines are by themselves not legally binding, they should be based on existing international law, including the ICESCR. On the other hand, the wording of the mandate might also imply that the Voluntary Guidelines should focus only on that aspect of the right to food falling within the ambit of “progressive realization” as opposed to obligations of an immediate nature or those specifcially related to the fundamental right to be free from hunger.

C. NATURE OF THE VOLUNTARY GUIDELINES

25. The Vienna Convention on the Law of Treaties is clear in indicating that international agreements do not create obligations for States without their consent.⁴¹ The Voluntary Guidelines, as their name indicates, are not intended to be legally binding. Both the form and content would suggest that they are recommendatory and are not meant to create any new legal obligations for any State. It also seems clear that while the ICESCR is highly relevant, the Voluntary Guidelines are not intended solely for those States that have ratified it. On the other hand, the Voluntary Guidelines cannot detract from obligations that States already have, whether under treaty or customary law, and should avoid giving the impression that their implemntation would not suffice for implementing obligations under human rights law, such as the ICESCR.
26. It should also be borne in mind that the Voluntary Guidelines are for application in all countries, whatever their level of development, climate or wealth. The CESCR has noted in this regard : “The most appropriate ways and means of implementing the right to adequate food will inevitably vary significantly from one State Party to another. Every State will have a margin of discretion in choosing its own approaches, but the Covenant clearly requires that each State party take whatever steps are necessary to ensure that everyone is free from hunger and as soon as possible can enjoy the right to adequate food.”⁴² .
27. For practical purposes, it is hard to see how the Voluntary Guidelines could be applied if they do not provide the necessary definitions and principles to be applied when taking measures in the various fields addressed by these.

IV. Conclusion

28. In developing the Voluntary Guidelines, the IGWG may, in light of the above discussion, consider whether it should restate existing customary or treaty law, interpret existing custormary or treaty law, progressively develop the right to food as it is contained in the ICESCR, or reaffirm the interpretations suggested by the CESCR in General Comment 12.
29. If the Voluntary Guidelines are based on the interpretations of the ICESCR, they would primarily facilitate the fullfilment of State Parties' obligations under the ICESCR. However, FAO and UN Member States non-party to the ICESCR could also implement the Voluntary Guidelines to the extent possible and compatible with their existing legal obligations.
30. Alternatively, the Voluntary Guidelines could be drafted taking as a basis the right to food as contained in the Universal Declaration on Human Rights, other international legal instruments⁴³ or general international law.
31. If at least the right to be free from hunger is customary international law, then it will be automatically incorporated into the domestic law of many States pursuant to their national legal systems and constitutional processes; the Voluntary Guidelines can assist in giving further content to this right. In States that do not automatically incorporate customary international law, but whose constitutions or laws contain a right to food or duty of government to assist the needy, the Voluntary Guidelines may provide authoritative interpretation of the constitutional provision.
32. For States Parties to the ICESCR whose domestic legal systems elevate human rights treaties to constitutional status, the interpretative statements contained in General Comments and Voluntary Guidelines would have interpretive weight, although they would not be legally binding. The Voluntary Guidelines would provide further detail to the definition of the rights and obligations contained in General Comment 12.
33. States Parties to the ICESCR must report on measures taken and difficulties encountered in implementing the rights it contains, but few States provide sufficient and precise information on the right to food.⁴⁴ The Voluntary Guidelines could provide benchmarks and a framework for State reporting. They would assist the CESCR and could be endorsed or adopted by it as a framework for future State reporting and the CESCR’s own evaluation of State reports.
34. The juridical value of the Voluntary Guidelines would be strengthened if the text makes specific reference to a customary international law right to food or is linked to the obligations of States Parties to the ICESCR or the United Nations Charter. The Voluntary Guidelines may set forth standards of conduct that give rise to strong political expectations if they refer to existing law to give them an authoritative basis and legitimacy. A certain weakness of command is explicit in the title “Voluntary Guidelines”, but the degree of specificity may give them stronger force than vague or ambiguous standards in a binding text. Thus, soft or indeterminate formulation of the right to food in treaty texts may be strengthened by the Voluntary Guidelines.

¹ Dec. 16, 1966, 993 UNTS 3 (entry into force July 18, 1978).

² May 23, 1969, 1155 U.N.T.S. 331.

³ ECOSOC Resolution 1985/17 of May 22, 1985.

⁴ Report of the Committee on Economic, Social and Cultural Rights, Fifth Session, U.N. Doc. E/1991/23. E/C.12/1990/8, at 83 (1991).

⁵ CHR Res. 2000/10, paragrph 8, GARES 57/226, paragraph 17, in which these bodies “welcome the work already done by the Committee on Economic, Social and Cultural Rights in promoting the right to adequate food, in particular its General Comment No. 12 (1999) on the right to adequate food”.

⁶ Report of the 25th Session of the Committee on World Food Security, Rome, 31 May - 3 June 1999. FAO Document No. CL 116/10

⁷ For instance, Statement on behalf of GRULAC (Latin America and the Caribbean) during the debates at the second session of the Inter-Governmental Working Group, Rome 27-29 October 2003

⁸ “Everyone has the right to a standard of living adequate for the health and well being of himself and his family, including food,…”Adopted by General Assembly resolution 217 A (III) of 10 December 1948

⁹ Courts have given effect to the UDHR in interpreting domestic laws. See e.g., Boehm v. Superior Court, 223 Cal Reptr 716 (Ct. App. 1986) in which a state court used the standards of UDHR art. 25 to interpret the California Welfare and Institutions Code section 17000 providing minimum assistance to the poor. A study several years ago found that more than 90 national constitutions since 1948 contain statements of fundamental rights inspired by the UDHR. More than two dozen constitutions explicitly refer to the UDHR. Annex 2 of the study lists national cases citing the UDHR and includes more than 200 opinions from 27 countries. In sum, the UDHR has served as a model for domestic constitutions, laws, regulations and policies; has been a source of judicial interpretation, a basis for action by inter-governmental organizations and diplomatic action; and has provided an inspiration to non-governmental organizations and individuals pressing for human rights in domestic law and international forums. See Hannum, H., “The Status of the Universal Declaration of Human Rights in National and International Law”, 25 Georgia. Journal of International and Comparative Law 287(1996).

¹⁰ According to a 1962 statement of the United Nations legal advisor, "[i]n United Nations practice, a 'declaration' is a formal and solemn instrument, suitable for rare occasions when principles of great and lasting importance are being enunciated, such as the Universal Declaration of Human Rights….in view of the greater solemnity and significance of a 'declaration' it may be considered to impart, on behalf of the organ adopting it, a strong expectation that members of the international community will abide by it. Consequently, in so far as the expectation is gradually justified by state practice, a declaration may become recognized as laying down rules binding upon states.” E/3616/Rev.1, E/CN.4/832/Rev.1, Commission on Human Right, Report of the Eighteenth Session, ECOSOC Supp. No. 8 (1962), paras.103-105.

¹¹ See General Assembly Resolutions A/RES/57/226 adopted on 18 December 2002, and A/RES/56/155 adopted on 19 December 2001, operative paragraph 2. See also Commission on Human Rights resolutions 1999/24 (26 April 1999), 2000/10 (17 April 2000, adopted by a vote of 49-1, with 2 abstentions), 2001/25 (20 April 2001), 2002/25 (22 April 2002, adopted without a vote) and 2003/25 (22 April 2003 adopted by a vote of 51-1 with one abstention).

¹² See, for instance, the Universal Declaration on the Eradication of Hunger and Malnutrition, Report of the World Food Conference, Rome, 5-16 November 1974; and Rome Declaration on World Food Security and the World Food Summit Plan of Action, FAO of the UN, Report of the World Food Summit, 13-17 November 1996

¹³ State practice and opino juris can be derived from national laws, declarations of intergovernmental bodies, and treaties. North Sea Continental Shelf Cases, 1969 ICJ 27 (Feb.20). See also Restatement of Foreign Relations Law of the United States, which declares that “virtually universal participation of states in the preparation and adoption of international agreements recognizing human rights principles generally, or particular rights” can be evidence of customary international law. Restatement of the Law (Third) Foreign Relations Law of the United States § 701(1986).

¹⁴ See Philip Alston, International Law and the Human Rights to Food, in The Right to Food (Philip Alston and Katarina Tomasevski eds., 1984) at 9.

¹⁵ See P. Spitz, Right to Food for Peoples and the People: A Historical Perspective, in The Right to Food, 170-75 (Philip Alston and Katarina Tomasevski eds.), 1984; Robert Robertson, Human Rights in the Twenty-First Century: A Global Challenge, 451 (Pathleen Mahoney and Paul Mahoney, eds. 1993)

¹⁶ FAO Document IGWG RTFG 2/INF 1, Recognition of the right to food at the national level, September 2003.

¹⁷ League of Nations O.J. Spec. Supp. 23 (1924). Freedom from want was also one of the four freedoms proclaimed by President Franklin Roosevelt on Jan. 6, 1941. Franklin D. Roosevelt, The Annual Message to Congress, January 6, 1941, in 9 Public Papers and Address of Franklin D. Roosevelt, at 672 (S. Rosenman ed., 1941). U.S. President Clinton on World Food Day 1998 referred to the right to food as the most basic human right.

¹⁸ Notably, the Human Rights Committee, in General Comment 6 of April 30, 1982, held that the right to life "has been too often narrowly interpreted. The expression "inherent right to life" cannot be understood properly in a restrictive manner, and the protection of this right requires that States adopt positive measures. In this connection, the Committee considers that it would be desirable for States parties to take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics."

¹⁹ Vienna Declaration and Programme of Action, A/CONF.157/23) Part I, para. 31.

²⁰ 16^th Plenary Meeting 16 Nov. 1974, para 1.

²¹ GA RES. 166, UN GAOR, 39^th Sess. (1984).

²² Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, arts. 20, 26; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 23; Protocol Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, arts. 54, 70. 1125 U.N.T.S. s, Protocol II Additional. At all times, the Genocide Convention prohibits the deliberate infliction of “conditions of life calculated to bring about its physical destruction in whole or in part” Art. II (c).

²³ The Geneva Convention Relative to the Protection of Civilian Persons in Time of War has been ratified by almost all States. The Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) have been ratified by the vast majority of States. Provisions guaranteeing access to humanitarian aid are considered part of customary international law and therefore binding on all States regardless of ratification.

²⁴ The Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), stipulates, in article 14: “Starvation of civilians as a method of combat is prohibited. It is therefore prohibited to attack, destroy, remove or render useless, for that purpose, objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works.”

²⁵ Somalia: U.N. SCOR, 3145^th mtg., U.N. Doc. S/RES 794 (1992); Yugoslavia, 3106^th mtg., UN Doc S/RES 700 (1992); and UN SCOR 3137^th mtg, U.N. Doc. S/RES/787 (1992).

²⁶ For international armed conflict, see art. 8, para. 2 (a) (vii) and (b) (viii) of the Rome Statute; for non-international armed conflict, see art. 8, para. 2 (e) (viii).

²⁷ Legality of the Threat or Use of Nuclear Weapons, ICJ, Reports 1966, p. 226 at p. 257, para. 79

²⁸ Draft Articles on State Responsibility for Internationally Wrongful Acts contained in Report of the International Law Commission on its 53^rd session, GA Official Documents 56^th session Doc. A/56/10, comments on Article 40

²⁹ North Sea Continental Shelf case at 4.

³⁰ See Katarina Tomasevski, ed., The Right to Food: Guide Through Applicable International Law (1987).

³¹ Donald E. Buckingham, A Recipe for Change: Towards an Integrated Approach to Food under International Law,” 6 Pace Int’l L. Rev. 285 (1994).

³² FAO, Report of the World Food Summit, Appendix, Rome 1997.

³³ Charter-based bodies are those not established by separate human rights treaty, but derive their authority directly from the UN Charter and subsequent resolutions. These include, in particular, UN General Assembly, ECOSOC, the Commission on Human Rights and the Sub-Commission on Promotion and Protection of Human Rights. Treaty bodies, by contrast, are those human rights bodies established under the various human rights treaties, such as the Human Rgiths Committee and the Committee Against Torture.

³⁴ ECOSOC created the CESCR to monitor implementation of the Covenant. Unlike the Human Rights Committee, the CESCR is not mandated to undertake its supervisory activities independently but is to assist ECOSOC in fulfilling its role under the Covenant.

³⁵ In 1999, the Special Rapporteur of the Sub-Commission on the Promotion and Protection of Human Rights, Mr. Asbjørn Eide, updated his study on the right to food and to be free from hunger. The Special Rapporteur recognized the role played by the World Food Summit Plan of Action in changing attitudes and acknowledged the important contribution of General Comment No. 12 in clarifying the content of the right and of corresponding State obligations. He noted that international institutions were increasingly endorsing a human rights approach to food and nutrition issues and called on States, international organizations, NGOs and civil society to act in a concerted way to eliminate the scourge of hunger from humanity.

³⁶ In 2000, the Commission on Human Rights appointed Mr. Jean Ziegler (Switzerland) as its first Special Rapporteur on the right to food. He has since submitted a number of reports and mission reports to the Commission on Human Rights and to the General Assembly. See, for instance, UN documents E/CN.4/2001/53, 7 February 2001; E/CN.4/2002/58/Add.1, 23 January 2002; A/56/357, 27 August 2002.

³⁷ Declaration of the World Food Summit: five years later, Operative Paragraph 10.

³⁸ General Assembly Res. A/C.3/58/L.70, 18 November 2003, welcoming the work of the Intergovernmental Working Group to elaborate a set of voluntary guidelines to support the efforts of Member States to achieve the progressive realization of the right to adequate food in the context of national food security. See also General Assembly resolution A/RES/57/226, paragraph 14

³⁹ Commission on Human Rights Res. 2003/25, welcoming the Voluntary Guidelines as a means to “support Member States efforts to achieve the progressive realization of the right to adequate food in the context of national food security and encourages them to continue their cooperation in this regard." (emphasis added)

⁴⁰ See Annex D, Report of the 123^rd Session of the FAO Council, 28 October to 2 November 2002.

⁴¹ Vienna Convention on the Law of Treaties, art. 34.

⁴² General Comment 12, para. 21.

⁴³ Including ICESCR, CEDAW, Convention on the Rights of the Child, Geneva Conventions and Protocols.

⁴⁴ FAO Document IGWG RTFG 2/INF 1, Recognition of the right to food at the national level, September 2003.