Hunger and the Law: Freedom from Hunger as a Freestanding Right

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1. Defining Violations: Immediate Obligations versus Progressive Realization

The right to adequate food, like other human rights, corresponds to three levels of obligations: the obligation to respect, to protect and to fulfill (which, in turn, embraces the obligations to facilitate and to provide). (122) This shows that the traditional categorization of civil and political rights as negative rights, and socioeconomic rights as positive entitlements, is arbitrary, even misleading. (123) Liberty-oriented civil and political rights or the so-called "first generation rights" are often considered "negative rights," while socioeconomic rights, or "second generation rights," are regarded as "positive entitlements." (124) Such categorization, however, conceals the fact that civil and political rights also entail positive entitlements (say, protection), while socioeconomic rights primarily impose negative obligations. (125) If, say, the right to food is primarily about feeding oneself in dignity, the principal obligation corresponding to it is negative--the obligation to respect. Accordingly, the right to food is violated if, for example, a state impedes an individual's access to her means of subsistence. (126) The obligation to protect, on the other hand, requires states to take positive measures to ensure that the enjoyment of the right is not impeded by third parties. (127) Failure to protect individuals from arbitrary dismissal by private employers may thus amount to a violation of the right to food. (128) "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." (129) In this case, a violation of the right to food occurs if a state, for example, fails to endeavor to improve methods of food production and distribution. (130) These three obligations are immediate and more or less apply to all kinds of human rights. (131) In all of these situations, the right holder provides her own food; the state has just to respect, provide protection from third party threats, and ensure enabling socioeconomic and political environment for the enjoyment of the right. However, whenever individuals are 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." (132) In this case, violation of the right to food occurs when individuals or groups simply starve (involuntarily) and the state fails to provide them with food. That is why hunger constitutes a prima facie violation of the right to food. (133)

Failure to meet any of the above obligations constitutes a violation of the right to food unless the state concerned proves that it has made every effort to meet its obligations. (134) The burden of proof lies on the state, and it is heavy. A state must prove not only the lack of sufficient food grain in its granary or funds in its coffers, but also that "it has unsuccessfully sought to obtain international support to ensure the availability and accessibility of the necessary food." (135) Of course, this is not the easiest thing to do. First, even in countries where hunger is rampant, there is usually surplus food. (136) Second, even though states are obliged under the Covenant to devote available resources to the realization of socioeconomic rights, (137) most

States, including some of the most food-insecure ones, devote a shocking proportion of their GDP rather for military purposes. (138)

The three obligations above apply at the international level, as well. (139) International obligations, with respect to the realization of the right to food, are not primarily about food transfers. The obligations call primarily for suitable international socioeconomic order and cooperation structures, as sanctioned by the U.N. Charter, the UDHR, ICESCR, and other instruments. …