 After eating, children are weighed and measured in Burkina Faso
The primary responsibility for ensuring the right to food lies with the national
authorities of each country.
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National responsibility
ICESCR Article 11 recognizes the right of everyone to an adequate
standard of living for themselves and their families. The right to an adequate standard of
living includes the rights to adequate food, freedom from hunger and the continuous
improvement of living conditions. The States Parties to the Covenant commit themselves to
take appropriate steps to ensure the realization of this right. Under ICESCR Article 2,
these steps are to be taken by each State Party, "to the maximum of its available
resources, with a view to achieving progressively the full realization of the rights
recognized in the present Covenant by all appropriate means, including particularly the
adoption of legislative measures" (emphasis added).
This commitment was renewed by the world's leaders in 1996 in the context
of Commitment 7.4 of the World Food Summit (WFS) Plan of Action, in which governments
announced that they would make every effort to implement the provisions of ICESCR Article
11. In the Plan of Action, governments pledged their political will and common and
national commitment to achieving food security for all11 and to an
ongoing effort to eradicate hunger in all countries, with an immediate view to reducing
the number of undernourished people to half its present (1996) level no later than 2015.12
The primary responsibility for ensuring the full enjoyment of the right
to adequate food lies with the national authorities of each state. This applies both to
the obligations contained in the International Human Rights Covenants and to the
commitments under the WFS Plan of Action.
In recognition of this primary responsibility, a number of countries have
enshrined the right to adequate food, or at least the responsibility of the state in this
area, in their national constitutions.13 As yet, however, no
country has adopted national legislation expressly to implement this right. Neither has
any substantial work been done to establish how such commitments can be implemented in
national legislation, although some elements of such a methodology have been defined and
are presented below.
Levels of state obligations
Human rights experts have identified three levels at which the state's
human rights obligations operate; states must respect, protect and fulfil their subjects`
rights. Obligations can be divided further into obligations of result and
obligations of conduct, the latter being the focus of legislative action. This basic
analysis already provides some guidance as to the types of action that a state may take
through national legislation.
Obligations to respect stipulate limits on the exercise of state
power, rather than positive action. The state should not, in general, interfere with the
livelihood of its subjects or their abilities to provide for themselves. Where any review
indicates the existence of national legislation that has such an effect, either directly
or indirectly, then immediate action will be called for to rectify the situation.
Obligations to protect require regulating the conduct of non-state
actors. This entails the establishment of an enabling regulatory environment, that is
legislation and sanctions, for example, in the fields of food safety and nutrition,
protection of the environment and land tenure.
Obligations to fulfil require positive action by the state to
identify vulnerable groups and to design, implement and monitor policies that will
facilitate their access to food-producing resources or an income. As a last resort, direct
assistance may have to be provided, to ensure, at a minimum, freedom from hunger.
A useful first step in deciding on legislative measures for the
implementation of the right to food would be for states to review how effectively they are
already implementing their obligations to respect, protect and fulfil, not only in the
substantive areas of food production, processing, distribution and consumption, but also
in the infrastructure that underlies those areas, for example in land tenure systems.
While doing this, states should also define the extent to which national
government itself should intervene, in the light of the principles of individual
responsibility, subsidiarity and complementarity, bearing in mind that the state's
obligation is to ensure the right to adequate food, and not necessarily to carry out
itself every substantive action or measure that needs to be taken.
A government's primary responsibility is not to interfere with
individuals' efforts to provide for themselves, but to seek to ensure an enabling
environment for such efforts. However, within every state, there will always be some
persons who need direct assistance and, in this context, the efficacy of existing social
safety nets and social legislation should also be reviewed, taking into account the role
of local authorities.
Scope of legislative reviews
The constitutional provisions recognizing the right to an adequate
standard of living, including the right to food, are normally concise and focused, while
the measures that may be required to give effect to that right will inevitably be
far-ranging and extend into many different areas. The measures will therefore need to be
practically oriented and, for this, the WFS Plan of Action provides a blue-print as well
as establishing targets for national governments, civil society and the international
community. Legislative and institutional measures are an essential component in
constructing the enabling environment in which rights can be realized.
Any review of national legislation and institutions needs to be
wide-ranging enough to cover all the relevant areas, but narrow enough to be tangible and
practicable. A well-focused review requires some initial understanding of the nature and
extent of the problem, the locations and numbers of those who are deprived of the right to
food or have inadequate access to food, and the reasons for that lack of access.14
The specific areas in which corrective legislative action is needed
should then be identified. These areas may include land tenure, access to water, credit,
rural markets, food production and food quality, as well as the institutional and
legislative framework in which the right to adequate food is to be realized.
The extent to which existing legislation and institutions are already
realizing the right to food is, of course, only one of the issues that a review of
national legislation and institutions needs to take into account - each country will have
its own constraints on the realization of the right to adequate food. However, all
relevant legislation and institutions will need to be reviewed from the point of view of
the degree in which, in addition to achieving their own sectoral objectives, they
contribute to an adequate regulatory and enabling framework for the realization of the
right to food, bearing in mind the state's obligations in this regard.
In addition, national legislation can also establish the framework within
which the review and practical measures take place by: establishing general principles for
the implementation of the right to adequate food; setting targets and deadlines; and
establishing the institutional framework for policy-making and the monitoring of progress.
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