VII-c. Levels of Government Obligation

On first hearing about the human right to food and nutrition, some people assume this means that governments will be obligated to feed everyone directly. This is a mistake. There may be some obligations for the government to provide for people directly, but that is required only in exceptional circumstances, where other means fail.

The premise is that under normal circumstances people will provide for themselves. As Asbj�rn Eide put it:

The (often unstated) prerequisite for the realization of an adequate standard of living is that the individual takes all measures within her or his capacity to achieve the conditions which ensure an adequate standard of living. The individual is expected to to use his/her own property or working capacity, to the best of his/her judgment, for this purpose. State obligations are intended to supplement these personal efforts of achieving an adequate standard of living whenever they are needed: for example, if the person concerned does not have opportunities which are available to others, has an inability, faces special obstacles which makes the endeavour impossible, or conditions in general are such that an adequate standard of living cannot be achieved without external assistance (Eide 1995, p. 100).

All parties--all governments, all organizations, all individuals--are obligated in some ways by human rights, at least morally, if not explicitly in the law. The challenge is to determine what these obligations are; what are different parties obligated to do (or not do) in concrete situations? So long as we are dealing with moral human rights, it is frequently difficult to make that determination. Transforming moral human rights into legal human rights can make that determination easier.

Well-crafted human rights law should be clear not only about the nature of the rights but also about the nature of the corresponding obligations. The law should clarify obligations not only for the state itself but also for other parties in its jurisdiction. As indicated earlier, in Subsection VI-f. Rights Imply Entitlements, at the local level we need to be clear about the local entitlements and commitments through which internationally recognized human rights are to be implemented. These should be spelled out in national and subnational law. (The term law here is taken to include implementing statutes, administrative rules, etc.) Thus, well-crafted national law should refer to the international human rights instruments and, with respect to each group of rights, specify the entitlements derived from these universal human rights. The corresponding commitments made for realization of these entitlements should be spelled out as well.

Entitlements sometimes emerge out of a history of practice.  If, for example, the government has subsidized bread for a very long time, people may come to feel they are entitled to that subsidy. However, we know that long-established practices can be suddenly discontinued.  Entitlements are much "harder" (in the sense discussed in Subsection VI-c) when they are spelled out in clear law with well designed means of implementation and accountability. Of course the law itself can be changed, or it can be violated. In the real world, commitments may be more or less hard, but they are never completely immutable. In the United States, Social Security is one of the people's strongest entitlements, but there are still many who fear that it may one day be severely diminished or even dismantled.

Earlier, in Subsection II-g, we discussed different types of action that governments could take to promote food and nutrition security.  Now, in the context of our discussion of human rights, we can draw on those categories to describe the varieties of government obligation. As indicated earlier, in Subsection IV-e. General Comment 12, the four categories are now described as follows:

The four categories apply to all human rights, though possibly in different proportions. 

It is important to clarify the obligations corresponding to particular rights. For example, the right to housing means that governments must respect and protect one's existing housing arrangements, but it does not necessarily mean that government must provide housing. Similarly, the common interpretation of the right to employment is that government must respect and protect, but it is not normally obligated to fulfill the need by providing employment opportunities. In contrast, the right to education is commonly understood to mean that government itself must fulfill the need, delivering educational services directly.

The four categories can be further elaborated specifically as they relate to the human right to food and nutrition. Each of the following sections begins with the explanation provided by Asbj�rn Eide in his 1999 study on the right to food, described earlier in Subsection IV-f.

Respect

According to Eide:

Since State obligations must be seen in the light of the assumption that human beings, families or wider groups seek to find their own solutions to their needs, States should, at the primary level, respect the resources owned by the individual, her or his freedom to find a job of preference, to make optimal use of her/his own knowledge and the freedom to take the necessary actions and use the necessary resources - alone or in association with others - to satisfy his or her own needs. The State cannot, however, passively leave it at that. Third parties are likely to interfere negatively with the possibilities that individuals or groups otherwise might have had to solve their own needs; 

Principle 25 of the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights reaffirms that "States Parties are obligated, regardless of the level of economic development, to ensure respect for minimum subsistence rights for all." That is, the state must not do anything which interferes with people's ability to provide for themselves and their families. They must not be taken off their land, they must be free to work and earn money, they must not have their goods confiscated by the government, they must not be taxed excessively, etc.

Protect

According to Eide:

At a secondary level, therefore, State obligations require active protection against other, more assertive or aggressive subjects - more powerful economic interests, such as protection against fraud, against unethical behaviour in trade and contractual relations, against the marketing and dumping of hazardous or dangerous products. This protective function of the State is widely used and is the most important aspect of State obligations with regard to economic, social and cultural rights, similar to the role of the State as protector of civil and political rights; 

Just as one's capacity to provide for oneself and one's family should not be threatened by government action, it should not be threatened by others who may be motivated to interfere. One of the major duties of governments everywhere is to provide their citizens with a measure of security, from those outside the country and also from one's fellow citizens. This, if your neighbor is stealing your crops, your government should do something to stop that. Those who are poor and vulnerable need protection not only from illegitimate acts, such as theft, but also from legal measures that may threaten their livelihoods. For example, if a poor family is forced to sell off its land because of excessive debt, the government should take some measures to assure that they are left with some means for providing for themselves. There should always be some sort of social safety net to assure an adequate standard of living despite periodic crises.

Fulfil (Facilitate)

According to Eide:

At the tertiary level, the State has the obligation to facilitate opportunities by which the rights listed can be enjoyed. It takes many forms, some of which are spelled out in the relevant instruments. For example, with regard to the right to food, the State shall, under the International Covenant (art. 11 (2)), take steps to "improve measures of production, conservation and distribution of food by making full use of technical and scientific knowledge and by developing or reforming agrarian systems".

In dealing with rights to food and nutrition, particular attention must be given to facilitation. States must create institutional arrangements--such as systems of currency, transport, marketing outlets, extension services, standards regarding food safety, etc.--that will allow and help people to provide for themselves. They must provide an "enabling environment" that allows people to provide for themselves.

As Cheryl Christensen observed, in any type of economy it is the duty of governments to assure that all their citizens can at least subsist:

In this concept of subsistence rights and duties, the emphasis lies, not on "feeding" or "maintaining" people but on creating a social and economic environment which fosters development and hence need not depend upon charity. To take seriously the notion of subsistence rights and to value them as universally applicable "minimal reasonable demands" on the rest of society means that the satisfaction of basic human needs must be a primary and explicit focus of development (Christensen 1978, p. 33).

Or, more simply, "A government's basic job is to provide a system in which people can meet their own and their children's basic needs (Timberlake 1990, p. 248)."  

It is the duty of governments to structure their societies in a way that prevents malnutrition. Under ideal governance there would be no need to even raise the question of a right to nutrition. The idea of nutrition rights comes up only because communities and governments are imperfect.

The best way to end malnutrition is to achieve sound development in all countries. What then can we say about so-called developed countries such as the United States in which there is still widespread malnutrition? The only possible conclusion is that they really are not yet fully developed in any proper understanding of that term.

Fulfill (Provide)

According to Eide:

At the fourth and final level, the State has the obligation to fulfil the rights of those who otherwise cannot enjoy their economic, social and cultural rights. This fourth level obligation increases in importance with increasing rates of urbanization and the decline of group or family responsibilities. Obligations towards the elderly and disabled, which in traditional agricultural society were taken care of by the family, must increasingly be borne by the State and thus by the national society as a whole. 

The respect, protect, and fulfil (facilitate) functions may fail to assure that every citizen is adequately nourished. For those who "fall through the cracks" of the system, or in disaster situations where normal means of self-provisioning become unavailable, there is some obligation for the government to provide for people's food and nutrition needs directly. In earlier work, Eide explained:

The obligation of the State as provider can range anywhere from a minimum safety net along the lines envisioned by the Reagan administration from 1981 onwards, to a full comprehensive welfare model along the lines of the Nordic countries. That the State has obligations in this direction was already established by Article 25 of the UDHR providing for "the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control".

Special measures must be taken by the State to ensure the adequate standard of living for children. Children can never be blamed for not doing their utmost to take care of their own needs, and they cannot be blamed for their choice of parents when they are insufficiently responsible. Consequently, there is an obvious need for the society to assist.

Individuals deprived of their freedom (detained person in prisons and institutions) can obviously not by their own means ensure their enjoyment of basic needs. Provisions must therefore be made by those who have detained or institutionalized the persons concerned (Eide 1995, pp. 104-105).

The obligation to fulfill by the government's directly providing what is needed is a kind of residual category, becoming operational to deal with needs that are not adequately addressed as a result of  individuals' own initiatives in the framework of the government's efforts to respect, protect, and facilitate. The government is the provider of last resort, but only for certain categories of people in certain kinds of extreme conditions. The government does not have the obligation to fulfill the needs of those who are healthy and have reasonable access to employment or to productive resources (e.g., land, fishing opportunities) and thus should be expected to provide for themselves. Governments must do something to prevent malnutrition; they don't have to do everything.

In Subsection V-c we discussed the role of national law in assuring the realization of the human right to food and nutrition for all. This outline of different levels of obligation can help to guide the drafting of such legislation and, more generally, in the formulation of national policy. Details regarding concrete obligations in all four categories should be spelled out in  national legislation and national policy.

Continue to VII-d. The Economics of Economic Rights

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Subsection VII-b lasted updated on September 29, 1999