A WORLD FOR EVERYONE?

LEVI RENNEBERG MAASTRICHT UNIVERSITY

A WORLD FOR EVERYONE? The impact of a growing global population on the obligations for States in relation to the international human right to adequate food.

A WORLD FOR EVERYONE?

AUTHOR Levi Renneberg levirenneberg@live.nl linkedin.com/in/levirenneberg @LeviRenneberg

INSTITUTE Maastricht University Faculty of Law Master in Globalisation and Law Specialisation Human Rights www.maastrichtuniversity.nl

Copyright © 2017 Levi Renneberg.

All rights reserved.

THESIS A WORLD FOR EVERYONE?

The impact of a growing global population on the obligations for States in relation to the international human right to adequate food.

LEVI RENNEBERG Maastricht University

MAASTRICHT 11 APRIL 2017

MASTER’S THESIS STUDENT ID: I6102411 SUPERVISOR: DR. WIM MULLER

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A WORLD FOR EVERYONE?

ABSTRACT Global population growth is a contemporary issue, having an impact on States’ obligations. A distinctive relation exists with the international human right to adequate food. The phenomenon of population growth has regional features which contribute to a future global peak population. Taking into account directly related developments, this leads to accelerated effects on food, water and environment. The international human right to adequate food imposes several types of obligations for States. The obligations to cooperate internationally and to respect rights extraterritorially are substantially influenced by global population growth. Currently, the right to adequate food is not being integrally realised everywhere. The impact of global population growth will result into a decrease in realisation. This is partially caused by the current legal framework not being adequately prepared for this phenomenon.

Keywords: global population growth; the right to adequate food; obligations for States; Social, Economic and Cultural rights; international human rights law.

Number of words: 10.000 Introduction — Conclusion, excluding footnotes and explicit quotations from primary legal sources.

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PREFACE & ACKNOWLEDGEMENTS Since I consider the growing world population a fascinating phenomenon and — in addition to my personal interest — it’s increasingly important in our society, I intend to explore the relation between a growing global population and international human rights. Based on prior knowledge, my initial conception is that this phenomenon has effects on several human rights.

In this thesis I will concisely discover which relations can be recognised. To bring more focus into the research, I will mainly focus on the relation with the right to adequate food — with its legal basis in article 11 of the International Covenant on Economic, Social and Cultural Rights — since I think this will be the most distinctive relation to identify.

In addition to serving as my master’s thesis, I hope this report might be of value for others interested in this subject matter and provides them food for thought.

Hereby I would like to thank Dr. Wim Muller for his contributions as thesis supervisor. I enjoyed reflecting on research results and critically overviewing the drafting process together. In addition to this I appreciated the provided recommendations regarding literature as well as discussing on focus and scope matters.

I hope you will have a pleasant reading.

Levi Renneberg

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TABLE OF CONTENTS Abstract ___________________________________________________________________________________ 5 Preface and acknowledgements _______________________________________________________________ 6 Table of contents ___________________________________________________________________________ 7 Introduction _______________________________________________________________________________ 8 1. The phenomenon ________________________________________________________________________ 9 1.1 History _____________________________________________________________________________ 9 1.2 Projections _________________________________________________________________________10 1.3 Effects _____________________________________________________________________________14 2. The right ______________________________________________________________________________18 2.1 Legal context _______________________________________________________________________18 2.2 Substance _________________________________________________________________________19 2.3 Subject ____________________________________________________________________________21 2.4 Obligations ________________________________________________________________________23 3. Implications and obligations _____________________________________________________________26 3.1 International cooperation ____________________________________________________________26 3.2 Food used for other purposes _________________________________________________________30 3.3 Jurisprudence ______________________________________________________________________31 4. In context _____________________________________________________________________________32 4.1 Impact _____________________________________________________________________________32 4.2 SDG No. 2: critical review ___________________________________________________________34 4.3 Lex ferenda _________________________________________________________________________36 Conclusion _______________________________________________________________________________38 Annexes A History (supplement) _________________________________________________________________39 B ‘Overpopulation’ _____________________________________________________________________41 C Legal context (supplement) ____________________________________________________________42 D Economic, social and cultural rights ____________________________________________________44 E Sustainable Development Goal No. 2 ___________________________________________________45 Bibliography ______________________________________________________________________________46

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INTRODUCTION Global population growth — it seems like an inevitable phenomenon, which will have an effect on numerous areas within the foreseeable future. This thesis analyses the relation between this phenomenon and the international human rights framework. It addresses the central question: What is the impact of a growing global population on the obligations for States in relation to the international human right to adequate food?

The first chapter provides an analysis of the phenomenon of a growing global population, in order to profoundly draw the relevant context for legal analysis. Therefore the history, the projections and several potential effects of global population growth are addressed in chapter one.

The second chapter analyses the legal framework related to the international human right to adequate food. It emphasises the substantive content of the right and the obligations of States. In order to provide a complete analysis, the subject of the right is also addressed.

The third chapter analyses the international and extraterritorial obligations and addresses the required State’s behaviour in order to comply with these obligations. It also analyses the legal implications of using food for other purposes than feeding and touches upon available jurisprudence.

The final chapter builds upon the earlier chapters by placing the obligations of States with respect to the right to adequate food in the context of a growing global population. It addresses the contextual relevance of these obligations and analyses how these will be influenced by global population growth. Furthermore the added value of Sustainable Development Goal No. 2 is critically reviewed and lex ferenda is addressed.

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ONE. THE PHENOMENON Over seven billion. This is the number of people living on our planet in 2015, as published by the Population Division of the United Nations. According to the same institute’s growth projection, global population will reach almost ten billion in the year 2050.1 The previously mentioned (projected) development constitutes the essence of the first chapter. Although this chapter has the least legal character, it forms the foundation for subsequent parts of this document. It provides an analysis of the phenomenon of a growing global population, in order to profoundly draw the relevant context for legal analysis. Therefore the history, the projections and several potential effects of global population growth are discussed in this chapter.

1.1

History

After a long period of steady moderate global population growth, exponential growth emerged since the modern era. Currently annual global population growth still exists, while being at a more modest level when compared to the peak growth period. This leaves us with an all time peak in global population, which currently remains growing — at different rates in several areas — as a present reference point. 2 To put the current global population into context: approximately six and a half percent of all people ever born, are alive at this moment. This may be considered noteworthy given the notion that the modern form of humanity appeared approximately fifty thousand years ago.3 The historical perspective of global population growth is addressed more comprehensively in annex A of this report.

1

United Nations, Department of Economic and Social Affairs, Population Division. "World Population Prospects: The 2015 Revision, Data Booklet." (2015).

2

Roser, Max, Ortiz-Ospina, Esteban. "World Population Growth." (2016); Haub, Carl. "How Many People Have Ever Lived on Earth?" Population Reference Bureau (2015).

3

Ibid.

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Projections

This section provides an overview of the projections regarding the global population in the near future, regions with remarkable growth features as well as a theoretical insight into demographic transition which underlies the projected future population estimates.

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1.2

Demographic transition methodology
 Firstly, the general theory behind expansion (and eventually decrease) of a population will briefly be addressed. Influencing factors with respect to population growth are birth rate and mortality rate. The most important driver behind the birth rate (or the fertility rate) is the number of children per woman. Whereas life expectancy is the most important driver behind the mortality rate. The difference between both rates results in a growing population (or when occurring conversely: declining population).4 Observations in numerous areas and countries have led to a general model of natural demographic transition. Generally speaking, any country naturally goes through the five stages of this model. These stages explain the natural process of demographic transition. A visualisation of this model5 will be provided below. 6

Since the previously mentioned model of natural demographic transition is a general methodology, it may appear in deviating forms in different countries and areas. In addition to this, the duration of the several individual stages may also differ, based on regional differences. These are subject to — among other factors — national health and living standards, natural and environmental developments as well as governmental policies.

4

Roser, Max, Ortiz-Ospina, Esteban. "World Population Growth." (2016).

5

Ibid.

6

Ibid.

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To concretise these factors interfering with this natural demographic transition model, some examples will be provided. Differentiating levels of healthcare, natural disasters, crop failures and restrictive child policies can all have influence on the birth and/or mortality rates within a certain area. This obviously effects appliance of the stages within the natural demographic transition model.

Global estimates By applying the described methodology — in addition to other research methods — the Population Division of the United Nations draws a projection of the global population in the (near) future. According to their latest report, global population is expected to grow from 7.3 billion people in the year 2015 to 8.5 billion people in the year 2030, 9.7 billion people in the year 2050 and 11.2 billion in the year 2100.7 The chart8 below visualises the projections of the United Nations Population Division. Since an estimate inherently entails a certain level of uncertainty, wider prediction scopes are also provided in this chart.9

As shown in the chart World population growth 1750-2100 in annex A of this report, the annual global population growth rate is expected to continue declining from approximately 1.2% at this moment, to 0.06% in the year 2100. In other words, it is expected that global population will continue to grow during this century, whereas around the upcoming turn of the century the global growth is expected to cease.10

7

UN, Dpt. of Economic and Social Affairs, Population Div. "World Population Prospects: The 2015 Revision, Data Booklet." (2015).

8

Ibid.

9

Ibid.

10

Roser, Max, Ortiz-Ospina, Esteban. "World Population Growth." (2016).

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Regional features As stated earlier in this report, regional and national deviations with respect to the global trend exist. In addition to the global estimates presented in the previous subparagraph, the UN Population Division also researches and reports projected population growth on regional and national levels. The estimated population growth categorised into individual major areas will be visualised in the following chart.11

Several interesting conclusions can be drawn from the information in the previously shown chart. Directly noteworthy is the projected substantial population growth in Africa. When looking at the global population growth between the year 2015 and the year 2050, Africa accounts for over half of this total growth. The second largest contributor is expected to be Asia. For Northern America, Latin America and the Caribbean and Oceania only a slight growth is expected, whereas the population in Europe is expected to decline during the same period.12 Future population growth is expected to occur mainly in the developing part of the world, especially in sub-Saharan Africa, with Nigeria being exemplary. Between the year 2015 and the year 2050 the Nigerian population is expected to more than double in size — a growth in percentage of 119% to be exact — making Nigeria the third most populous country in 2050. 13

11

United Nations, Department of Economic and Social Affairs, Population Division. "World Population Prospects: The 2015 Revision, Data Booklet." (2015).

12

Ibid.

United Nations, Department of Economic and Social Affairs, Population Division. "World Population Prospects: The 2015 Revision, Data Booklet." (2015); Roser, Max, Ortiz-Ospina, Esteban. "World Population Growth." (2016).

13

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The chart14 below visualises the ten largest countries and the size of its populations in the year 2015 as well as its equivalents in the year 2050.

In addition to the notable estimated population growth in Nigeria and other sub-Saharan countries such as the Democratic Republic of the Congo and Ethiopia, India and China remain the most populous regions.

Whereas India is expected to experience substantial growth — making it the country with the largest population in 2050 — China is expected to show a slight population decrease which is caused by a falling fertility rate. 15 The countries with the largest absolute contribution to global population growth in the period starting from the year 2015 until the year 2050, starting with the country with the largest absolute population growth, then descending, are: 1. India; 2. Nigeria; 3. Pakistan; 4. Democratic Republic of Congo; 5. Ethiopia; 6. United Republic of Tanzania; 7. United States of America; 8. Indonesia; 9. Uganda.

These nine countries are responsible for half of the global population growth in this period of time. 16

14

UN, Dpt. of Economic and Social Affairs, Population Div. "World Population Prospects: The 2015 Revision, Data Booklet." (2015).

15

UN, Dpt. of Economic and Social Affairs, Population Div. "World Population Prospects: The 2015 Revision, Data Booklet." (2015); Roser, Max, Ortiz-Ospina, Esteban. "World Population Growth." (2016).

16

UN, Dpt. of Economic and Social Affairs, Population Div. "World Population Prospects: The 2015 Revision, Data Booklet." (2015).

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Effects

The in section 1.2 described projected trends will result into effects in numerous areas. Given the purpose of this report, only the most relevant potential effects within the context of this subject matter will be analysed in this section. It will focus on the effects on the demand for food and water as well as the environmental footprint of the growing global population.

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1.3

Food
 Food is a key prerequisite for human life and therefore a growing global population has a direct correlation with food consumption. In this subparagraph the potential effects of global population growth on global food demand will be analysed.

In order to provide a simplified insight into the scale of the impact of global population growth in the field of global food demand, the following calculation can be made.

According to the United Nations Food and Agriculture Organisation the world average quantity of food consumed daily was 1.878 grams in the year 2011. The proportion of each food category within this average diet is visualised in the chart 17 on the right hand side. 18 When combining the global average daily food consumption with the world population number, the global total food consumption in 2011 was 4,8 Gigatonnes.19 20 Assuming that the average human diet remains similar to the 2011 diet, this results in a food demand of 6,7 Gigatonnes in the year 2050 and 7,7 Gigatonnes in the year 2100. This results in an increased food demand of 38,3% in the year 2050 and even 59,7% in the year 2100, both when compared to the year 2011. Thus, an additional annual food supply of 2,9 Gigatonnes is required in the year 2100.21 22

17

National Geographic (based on FAOSTAT data). "What the World Eats." Future of Food series (2014).

18

Ibid.

Calculation 2011: 7.013.427.052 persons * 1.878 grams * 365,2425 days = 4.810.687.861 tonnes = 4,8 Gigatonnes; 1 tonne = 1.000 kilo, 1 kilo = 1.000 gram, 1 Gigatonne = 1.000.000.000 tonnes.

19

20

Roser, Max, Ortiz-Ospina, Esteban. "World Population Growth." (2016); National Geographic (based on FAOSTAT data). "What the World Eats." Future of Food series (2014); Richards, E.G. Calenders. Explanatory Supplement to the Astronomical Almanac (3rd Ed.) (2013).

21

Calculation 2050: 9.700.000.000 persons * 1.878 grams * 365,2425 days = 6.653.476.525 tonnes = 6,7 Gigatonnes; Calculation 2100: 11.200.000.000 persons * 1.878 grams * 365,2425 days = 7.682.364.648 tonnes = 7,7 Gigatonnes; Calculation increase 2011-2050 in percentage: 6.653.476.525 - 4.810.687.861 / 4.810.687.861 = 0,3830613661176; Calculation increase 2011-2100 in percentage: 7.682.364.648 - 4.810.687.861 / 4.810.687.861 = 0,59693683522486.

UN, Dpt. of Economic and Social Affairs, Population Div. "World Population Prospects: The 2015 Revision, Data Booklet." (2015); National Geographic (based on FAOSTAT data). "What the World Eats." Future of Food series (2014).

22

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The previously calculated estimates in future global food demand and global food demand increase are purely indicative. The reason for this can be found in the fact that food demand depends on numerous factors. Major influencers are dietary changes of a population, availability of food and resources, the relative price level index of food and developments in agriculture, among other factors.

When attempting to predict the perspective impact of these influencers on global food demand, only limited relevant and reliable data appears to be available. This can be considered reasonable, since these future trends are hard to foresee. However, one clear trend can be recognised: the consumption of meat and dairy products of people living in countries with emerging economies increases substantially as a result of their newfound prosperity, in addition to a general increased calorie intake.23 A feature of meat and dairy products is that they require considerable inputs of grain and other resources, resulting in a relatively small caloric gain. When looking at this trend in relation to the already expected global population growth, this results in an exponential increased future demand for grain, crops and other resources production. Especially when realising that this report has already shown that the expected future population growth is expected to mainly take place in developing countries, where thus meat and dairy consumption will rise. 24 When looking retrospectively at the past decades, it becomes obvious that an increasing meat consumption has been a development that already has been taking place. The global consumption of meat has increased by 325% during the period between the year 1961 and the year 2011.25 A striking example of the inefficiency of meat within a food system can be found in the fact that every hundred calories of resources fed to animals, result in only three calories of beef for human consumption.

This mechanism naturally accelerates the demand for food even further. In addition to this, meat and dairy consumption is also related to excessive amounts of water usage. For producing hundred grams of beef, as much as 2.500 liters of water is required. Meat and dairy production is furthermore associated with having several damaging effects such as deforestation, the emission of carbon dioxide, methane and similar greenhouse gasses as well as other adverse environmental effects.26

In the year 2050, global population is expected to increase by over 35 percent.

The production of crop will need to double, in order to feed every human.

Global population growth will have to be outpaced by crop production as a result of increased meat and dairy demand in developing countries.27 23

Royte, Elizabeth. "How ‘Ugly’ Fruits and Vegetables Can Help Solve World Hunger." National Geographic: Future of Food (2016).

24

Foley, Jonathan. "A Five-Step Plan to Feed the World." National Geographic: Future of Food (2016); Roser, Max, Ortiz-Ospina, Esteban. "World Population Growth." (2016).

25

National Geographic (based on FAOSTAT data). "What the World Eats." Future of Food series (2014).

26

Foley, Jonathan. "A Five-Step Plan to Feed the World." National Geographic: Future of Food (2016); Andersen, Kip. “Cowspiracy, the Sustainability Secret.” Documentary (2014).

27

Foley, Jonathan. "A Five-Step Plan to Feed the World." National Geographic: Future of Food (2016).

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Water Future global water consumption and usage is also being affected by the prospective global population growth. Since this is a comparable relation to the in the previous subparagraph addressed effect with regard to the food demand, this issue will be analysed more briefly.

Water is essential for existence and human health. Of all diseases in developing countries, nearly 80% can be related to water. Global demand for water is growing with approximately sixty-four billion cubic meters every year. In the latest fifty years water usage has tripled.28 Agriculture is responsible for approximately 70% of global water usage. Whereas 20% is used in industry and 10% accounts for domestic consumption or usage. In substantially industrialised countries the amount of water being used by industries can be considerably higher.29 Increasing energy demand, the production of biofuels, dietary changes, changes in human lifestyles and growing consumption of commodities and products have all resulted into a substantially increased water consumption per capita during recent decades. Future global population increase will naturally accelerate this growing global demand for water. The correlation of dietary changes resulting in excessive increases in food demand also leads to excessive increases in global water demand.30 Environmental footprint Some experts argue that human activity — especially growing global population — is the driver behind every main problem humanity faces in this century. Climate change, pollution, extreme weather events and ecosystem degradation can all be related to (growing) human activity and are considered highly interconnected problems. These adverse effects of human activity are expected to be accelerated by global population growth.31 In previous subparagraphs the issues relating to food and water have been analysed. These can be considered major factors of the human environmental footprint, having adverse effects on the world we live in. A striking example of this is the fact that already almost forty percent of earth’s ice free land surface is dedicated to agriculture, having already resulted in deforestation, pollution and excessive water usage.

Considering projected global population growth, these adverse effects are expected to increase. 32 However, food and water related effects are not the only effects which can be related to the human environmental footprint. Human transportation and consumption of products which are manufactured at remote locations, using resources sourced from around the world, are also contributing to the environmental footprint. The level of occurrence with respect to these contributors correlates to the degree of economical welfare, since the majority of these activities are initiated in developed countries. 33

28

Worldometers (based on UN/UNESCO/FAO data). "Water Consumption Statistics." (2016).

29

Ibid.

30

Ibid.

31

Emmott, Stephen. "Humans: The Real Threat to Life on Earth." The Guardian (2013); Roser, Max, Ortiz-Ospina, Esteban. "World Population Growth." (2016); Emmott, Stephen. Ten Billion. Documentary (2015).

32

Emmott, Stephen. "Humans: The Real Threat to Life on Earth." The Guardian (2013); Emmott, Stephen. Ten Billion. Documentary (2015).

33

Ibid.

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The climate of a planet is a fundamental aspect of enabling human existence. Global population’s activity has already affected every component of the climate of the earth: the atmosphere, the hydrosphere, the cryosphere and the biosphere. Some experts consider certain effects irreversible. A larger global population will — under unchanged circumstances — lead to more severe effects on the climate. 34 Research of the Intergovernmental Panel on Climate Change in 2014 has shown that the global annual anthropogenic greenhouse gas emission in the year 2010 was forty-nine Gigatonne of carbon dioxide equivalent — the highest amount in human history thus far. When projecting the effect of expected global population growth on the annual anthropogenic greenhouse gas emission amount, this would lead to an added annual emission of 16,6 Gigatonne of carbon dioxide equivalent in the year 2050 and an extra 27,2 Gigatonne in the year 2100, when compared to the year 2015. This calculation is based on a since the year 2010 unchanged annual greenhouse gas emission of 7.071 Kilograms per person. The projection is therefore purely indicative and subject to changes in anthropogenic emissions. The chart35 below shows the greenhouse gas emissions by economic sectors.36 37 38

34

Ibid.

Intergovernmental Panel on Climate Change. "Climate Change 2014: Mitigation of Climate Change. Summary for Policymakers.” (2014).

35

36

Calculation: 49 Gigatonne = 49.000.000.000.000 Kilograms / 6.929.725.043 global population in 2010 = 7.071 Kilograms per person. 7.349.472.099 global population in 2015; Calculation 2050: 9.700.000.000 persons - 7.349.472.099 global population in 2015 * 7.071 Kilograms per person = 16.620.582.787.971 Kilograms = 16,6 Gigatonne; Calculation 2100: 11.200.000.000 persons - 7.349.472.099 global population in 2015 * 7.071 Kilograms per person = 27.227.082.787.971 Kilograms = 27,2 Gigatonne.

37

Greenhouse gasses include: carbon dioxide (CO2) from fossil fuel combustion and industrial processes, CO2 from forestry and other land use, methane (CH4), nitrous oxide (N2O) as well as fluorinated gases covered under the Kyoto Protocol (F-gases).

Intergovernmental Panel on Climate Change. "Climate Change 2014: Mitigation of Climate Change. Summary for Policymakers.” (2014); Roser, Max, Ortiz-Ospina, Esteban. "World Population Growth." (2016).

38

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TWO. THE RIGHT
 The second chapter addresses the legal framework related to the central international human right of this report: the right to adequate food. It emphasises the substantive content of the right and the obligations of States with respect to this right. In order to provide a complete analysis, the subject of the right is also addressed. To start off, a brief introduction of the international human rights framework is given, in order to draw the relevant legal context.

2.1

Legal context

The right to adequate food is part of the international human rights law framework. Human rights fall within public international law. They are founded upon both legal as well as philosophical and moral considerations. Specific conditions apply to recognition as a human right and human rights are being used in various ways.39 The legal context is addressed more comprehensively in annex C of this report.

International human rights can be categorised into three general categories. These are: civil and political rights; economic, social and cultural rights; and collective rights. The right to adequate food falls within the category of economic, social and cultural rights (hereafter: ESC rights).40 A comprehensive introduction to this category is included as annex D in this report.

39

Bantekas, Ilias, Oette, Lutz. International Human Rights Law and Practice. (2013). P. 9 - 96.

40

Ibid.

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Substance

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2.2

First of all, the relevant provisions related to the right to adequate food in the most significant legal documents will be presented. The right to adequate food is part of the Universal Declaration of Human Rights (art. 25), in the context of an adequate standard of living.

“Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, […]”41 The International Covenant on Economic, Social and Cultural Rights (1966), recognises the right to adequate food as an essential part of the right to an adequate standard of living (art. 11(1)). It also explicitly recognises “the fundamental right of everyone to be free from hunger” (art. 11(2)).

“1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international cooperation based on free consent.

2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international cooperation, the measures, including specific programmes, which are needed: (a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources; (b) Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.”42 General Comment No. 12 of the Committee on Economic, Social and Cultural Rights (1999) is important in interpreting the exact content of in particular article 11 of the International Covenant on Economic, Social and Cultural Rights. This General Comment states with respect to the normative content of the right to adequate food the following.

“The right to adequate food is realized when every man, woman and child, alone or in community with others, have physical and economic access at all times to adequate food or means for its procurement.”43 When analysing the content of the right to adequate food, certain important elements can be recognised.

The most significant elements are availability, accessibility, adequacy and sustainability. These elements will subsequently be addressed.44

41

Article 25, Universal Declaration of Human Rights (1948).

42

Article 11, International Covenant on Economic, Social and Cultural Rights (1966).

43

General Comment No. 12 of the Committee on Economic, Social and Cultural Rights (1999), paragraphs 6 - 13.

Ibid; United Nations, OHCHR, FAO. “Fact Sheet No. 34, The Right to Adequate Food.” (2010).

44

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Availability relates to two separate features. Firstly, food should be made available from natural resources by producing food, cultivating land, holding animals, fishing, hunting, gathering or other methods of obtaining food. Secondly, food should be available to be purchased on the location of where it is needed through a market system.45 The element accessibility also requires two separate guarantees, the first being economic accessibility.

Economic accessibility implies that food should be affordable. Individuals and households should be able to acquire food for an adequate diet, without resulting in the need to compromise on other basic needs.

The second guarantee of accessibility is physical access. This implies that adequate food should be accessible for everyone, including physically vulnerable people and others with special needs. 46 The adequacy of food is largely characterised by prevailing social, economic, cultural, climatic, ecological and other conditions. It relates to the notion that the food should satisfy the dietary needs of the individual, considering the personal circumstances such as gender, health, age. Food should also be safe for human consumption and free from adverse substances. In addition to this, food should be acceptable within the culture.47 Sustainability is linked to the notion of food security. It implies that adequate food is available and accessible for current as well as future generations. Therefore, sustainability adds long-term availability and accessibility to the right to adequate food, hereby emphasising that solely short-term availability and accessibility is not sufficient.48

45

General Comment No. 12 of the Committee on Economic, Social and Cultural Rights (1999), paragraphs 6 - 13; United Nations, OHCHR, FAO. “Fact Sheet No. 34, The Right to Adequate Food.� (2010).

46

Ibid.

47

Ibid.

48

Ibid.

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Subject

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2.3

This section will analyse the subject — also considered the right holders — of the right to adequate food.

The right to adequate food is considered essential for the enjoyment of all other human rights. It applies to everyone. The reference to “himself and his family” in article 11(1) of the International Covenant on Economic, Social and Cultural Rights should not be interpreted as a limitation to the application of the right to food for individuals, females or female households.49 Whereas the right to adequate food accordingly applies to everyone, there are certain individuals or groups who experience specific challenges in relation to the right to food. This can be the result of biological, socio-economic, discriminatory or other factors. The right to adequate food — often applied in combination with principles of equality and non-discrimination — results in particular attention being required for these individuals and groups. Especially when these remain in a vulnerable situation. This required particular attention is emphasised in specific provisions throughout General Comment No. 12 of the Committee on Economic, Social and Cultural Rights (1999). Four of the most emphasised groups are people living in poverty in rural and urban areas, indigenous peoples, women and children. These will be addressed subsequently. 50 The distinctive feature of people living in poverty in rural and urban areas lies in that they do not have the means to produce their own food, in addition to not being able to afford buying food from the market system. These people often have no access to productive resources for providing their own food, such as land, water, seeds and others nor do they have sufficient means in order to purchase adequate food. This issue also relates to insufficient fulfilment of other human rights. The right to education, the right to (land) ownership, the right to work and the right to equality are exemplary in this context.51 Indigenous peoples are often vulnerable to insufficient realisation of their right to adequate food. This results from historical social, political and economic exclusion and expropriation of their land. A distinctive issue relates to their cultural relation with food. Since the right to adequate food implies cultural acceptance in order for food to be considered adequate, it has to be taken into account that — given the culture of indigenous peoples — ‘mainstream’ food often does not fulfil this standard for indigenous peoples. For this group, lacking fulfilment of the right to adequate food has a relationship with insufficient fulfilment of other human rights, comparable to people living in poverty. In addition to this it also relates to specific rights of indigenous peoples.52

49

General Comment No. 12 of the Committee on Economic, Social and Cultural Rights (1999), section 1; United Nations, OHCHR, FAO. “Fact Sheet No. 34, The Right to Adequate Food.” (2010).

50

General Comment No. 12 of the Committee on Economic, Social and Cultural Rights (1999); United Nations, OHCHR, FAO. “Fact Sheet No. 34, The Right to Adequate Food.” (2010). P. 9 - 17.

51

Ibid.

52

Ibid.

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Women are often disproportionally affected by insufficient fulfilment of their right to food. This is often caused by gender inequality and lacking fulfilment of other human rights. When looking at land (and other properties) ownership and inheritance, women are often disadvantaged, especially in developing countries. The same applies to access to credit, natural resources, technology, education, information and other services. This results in a lack of access to means for producing or acquiring adequate food. In addition to this, women also have specific dietary needs, especially in the context of reproductive health.

Therefore, insufficient realisation of the right to adequate food for pregnant and breastfeeding women can result into severe adverse effects for their children. The Convention on the Elimination of All Forms of Discrimination against Women’s (1979) is also relevant in this context.53 Adequate food is essential for the process of growing physically and mentally. Therefore, children are especially vulnerable to insufficient fulfilment of their right to adequate food. Since infants and young children are unable to produce or acquire their own food, they are dependent on their families or caregivers for adequate food. Therefore their fulfilment of the right to adequate food has a direct effect on the children’s enjoyment of the right to adequate food. The right to adequate food for children relates to several other human rights and is also emphasised in the Convention on the Rights of the Child (1989).54 The previously mentioned groups are not exclusive. Other groups being socially or physically vulnerable in fulfilling the right to adequate food can also be recognised. Examples of this are disabled people, people with persistent medical problems and victims of natural disasters.55

53

Ibid.

54

Ibid.

55

Ibid.

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Obligations

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2.4

In the last section of this chapter, the duty bearers and their obligations with respect to the right to adequate food will be analysed.

The nature of States’ obligations will be considered from a modern perspective. This results into ESC rights including core obligations, having the typology of obligations (not only social programs or political goals) and entailing both negative obligations and positive obligations resulting from ‘social’ dimensions of civil and political rights.56 The primary legal obligation to protect and promote human rights lies with States. As stated in article 2 of the International Covenant on Economic, Social and Cultural Rights (1966), this also applies to the right to adequate food. Whereas this article mentions “State Parties”, the customary law status allows the provisions to also be considered legal obligations for non-party States. 57 The principal obligation for States — as part of the previously mentioned article and confirmed in General Comment No. 12 — is to take steps to progressively achieve the full realisation of the right to adequate food. However, certain obligations have an immediate nature.58 General types In general, three types (or levels) of obligations result from the right to adequate food — as well as most other human rights. These are the obligations to respect, to protect and to fulfil, which will be analysed subsequently.59 The obligation to respect requires States not to interfere with the enjoyment of the right to food. Existing access to food and means of obtaining food should be respected and no measures having as an effect prevention of this access should be taken. For example, no policy to prevent people from cultivating their own food may be adopted and no measure of denying food assistance to political opponents may be taken. Legislation or policies granting people access to food may not be suspended, unless fully justified.60 The obligation to protect requires the State to prevent non-state actors from interference with the right to food of right holders. A State should for instance prevent big landowners or transnational corporations (hereafter: TNCs) from evicting people from their land or destroying sources of food by polluting land, water or air. Furthermore, a State has to ensure food safety and nutritiousness, protect people from advertisement of unhealthy food and consider the obligations related to food when entering into (international) agreements. 61

56

Bantekas, Ilias, Oette, Lutz. International Human Rights Law and Practice. (2013). P. 366 - 407.

General Comment No. 12 of the Committee on Economic, Social and Cultural Rights (1999), paragraphs 14 - 20; United Nations, OHCHR, FAO. “Fact Sheet No. 34, The Right to Adequate Food.” (2010). P. 17 - 26.

57

58

Ibid.

59

Ibid.

60

Ibid.

61

Ibid.

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The obligation to fulfil consists of two dimensions, the obligation to facilitate and the obligation to provide. The obligation to facilitate relates to proactive State action aiming at strengthening people’s access to and use of resources and means to ensure their livelihood, including food security. Examples of this are measures to promote access to means, services and resources, such as employment, training, credit, land reform, food market and distribution systems. Informing people about their right to food and increasing participation in development processes and decision-making also fall within this scope. The obligation to provide requires the State to provide food directly to individuals who, for reasons beyond their control, cannot enjoy the right to adequate food by his/her personal efforts. Exemplary of this is engagement in the direct provision of food or cash for those in desperate need in order to survive, such as victims of natural or other disasters. 62 Progressive and immediate obligations The obligations of States, with regard to the right to adequate food can have two characteristics. They can aim at progressive realisation of the right, which gives them a more long-term character. This implicitly recognises that States may experience resource constraints, which leads to full realisation of its obligations with respect to the right to food realistically only being possible over a certain period of time. Its progressive realisation obligations require States to take effort to reach the obligations and results into refraining to act being a violation of its obligations.63 In addition to the obligations subject to progressive realisation, obligations having an immediate effect can also be recognised. These obligations include the elimination of discrimination, the obligation to take steps, the prohibition of retrogressive measures and the protection of a minimum essential level. These are not specific for the right to food, but apply to the complete International Covenant on Economic, Social and Cultural Rights (1966). When looking at the protection of a minimum essential level of the right to food — also considered the minimum core obligation — States have to ensure a minimum level of the satisfaction of this right which leads to at least being free from hunger. This also applies to a situation of natural or other disasters. If a State is not being able to realise this core obligation, it has to demonstrate having made all efforts and having used every resource to realise, as a matter of priority, this core obligation.64 International obligations In addition to domestic obligations, as a result of globalisation the right to adequate foods also has crossborder dimensions. These aspects are related to international trade in food and resources, climate change and international development cooperation. This leads to international obligations for States. These obligations are emphasised in article 2 and 11(2) of the International Covenant on Economic, Social and Cultural Rights, article 1(3), 55 and 56 of the Charter of the United Nations, article 22 and 28 of the Universal Declaration Human Rights and other international human right documents.65

62

Ibid.

63

Ibid.

64

Ibid.

65

Ibid.

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In the context of the right to food, these obligations result into States being obliged to actively request assistance from other States or in conjunction address obstacles in a situation where it is not being able to realise its obligations by itself. In addition States have to abstain from measures having adverse effects on the realisation of the right to adequate food in other States. Also, States should participate in international assistance and cooperation aimed at helping other States to realise its respective obligations. Therefore, protection and promotion of the right to food has to be considered adequately when negotiating international agreements and developing domestic measures with an extraterritorial effect.66 Obligations of other actors
 As stated before, States hold the primary obligation with respect to the right to adequate food. However, as a result of globalisation there is an increasing debate about the responsibilities of other actors in society.

Especially intergovernmental organisations, non-governmental organisations and TNCs are by some considered as having responsibilities in this context. Given the focus of this report on the obligations of States, the obligations of others are not being analysed extensively. 67 

66

Ibid.

67

Ibid.

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THREE. IMPLICATIONS & OBLIGATIONS Chapter three will analyse the international and extraterritorial obligations and addresses the question of what State behaviour is required in order to comply with these obligations. Furthermore, this chapter analyses the legal implications of using food for other purposes than feeding and briefly touches upon available jurisprudence.

3.1

International cooperation

In the context of State obligations with respect to the right to adequate food, international cooperation is of significant importance. This section addresses its substance and implications. Food aid is a well-known method of international assistance in the field of the right to adequate food. This section analyses to what extent food aid is sufficient in fulfilling the respective obligations of States.

Hard law instruments As addressed in section 2.4 of this report, article 11(2) of the International Covenant on Economic, Social and Cultural Rights — as well as other provisions in international law documents — emphasise the essential importance of international cooperation, with respect to the right to adequate food. The essential importance of international cooperation has been helped to interpret by the Committee on Economic, Social and Cultural Rights in General Comment No. 12 through the following statement: “States parties should take steps to respect the enjoyment of the right to food in other countries, to protect that right, to facilitate access to food and to provide the necessary aid when required”.68 The second chapter of this report provides more in-depth analysis of the relevant hard law instruments.69 Soft law instruments The before mentioned shared responsibility has also been consistently expressed in international conferences and declarations regarding food and nutrition.70 The 1974 Universal Declaration on the Eradication of Hunger and Malnutrition, which was adopted by 135 States at the first World Food Conference, mainly emphasises the concept of a shared responsibility of the international community and urges States to cooperate internationally, aiming at the eradication of hunger. It describes the eradication of hunger as “a common objective of all the countries of the international community, especially of the developed countries and others in a position to help”. 71 Developed States thereby were urged to take effective international action, in order to provide sufficient assistance to developing States. This could be realised through favourable bilateral or multilateral 68

General Comment No. 12 of the Committee on Economic, Social and Cultural Rights (1999), section 36.

69

Schutter, Olivier de, Cordes, Kaitlin. Accounting for Hunger. The Right to Food in the Era of Globalization. (2011). P. 239 - 264 (Ferrer Moreu, Loreto).

70

Ibid.

World Food Conference. Universal Declaration on the Eradication of Hunger and Malnutrition (1974). Section 1. UN document E/ CONF 65/20.

71

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agreements. Another significant aspect of this Declaration is its encouragement of developed State parties to plan food aid ahead, aiming to set food aid apart from the effects of excessive fluctuations in prices and production. In addition to this, the Declaration also urges developed State parties to provide commodities or financial assistance, in order to safeguard food in adequate quantities for developing States.72 The 1992 World Declaration on Nutrition has been concluded as a result of a call by the FAO and the WHO, pointing at over 800 million people whose access to food did not meet their basic daily needs. It reaffirmed the commitment of the 159 State parties to fight against hunger, emphasising the right to an adequate standard of living and the right to adequate food. The Declaration again accentuated the importance of international cooperation and States promised to “act in solidarity to ensure that freedom from hunger becomes a reality”.73 As measures to realise this, increasing official development assistance (ODA) and alleviation of external debt are part of the Declaration. Another aspect of the Declaration is an urge to develop national nutrition plans, as a collaborative effort of governments, scholars, local communities, NGOs and private sector. In the Declaration it has been emphasised that food aid needs to be sufficient and stable, avoid creating dependency and adverse impacts as well as include participation of local communities and long-term planning.74 In 1996 at the World Food Summit, the Rome Declaration was adopted by 185 States and the European Community. This reaffirmed the right to adequate food of every person and the obligations of States. It set the target to halve the number of undernourished people by the year 2015. To realise this, national policies as well as international cooperation have been part of the Rome Declaration. Both direct food aid and long-term food security are part of this Declaration. The World Food Summit’s plan of action acknowledges food aid as a solution for people in risk of immediate starvation during emergency situations. However it distinguishes food aid from long-term solutions addressing the underlying causes of food insecurity. During the 2002 and 2009 successive World Food Summits the international community acknowledged disappointing progress and reaffirmed (as well as adjusted with respect to some aspects) their efforts.75 The 2004 FAO Voluntary Guidelines have been developed in response to the 2002 World Food Summit recommendations. These Guidelines attempted to interpret the right to adequate food and recommend actions for its realisation. The Guidelines urged the need to apply strategies based on human rights, in order to progressively realise the right to adequate food. In the Guidelines the critical importance of international assistance is emphasised. This resulted into revitalisation of the obligation for States to cooperate. In addition to the obligations to respect, protect and fulfil the right to adequate food nationally, States are also obliged to take positive action to fulfil this human right beyond its national borders, through international assistance. Food aid can be one the many instruments of international assistance which can be applied in order to adhere to the State’s obligations in this context. However, certain conditions have been placed on food aid in the Guidelines, in order to prevent adverse effects such as creating dependency.76

Schutter, Olivier de, Cordes, Kaitlin. Accounting for Hunger. The Right to Food in the Era of Globalization. (2011). P. 239 - 264 (Ferrer Moreu, Loreto).

72

73

International Conference on Nutrition, World Declaration on Nutrition (1992). Paragraphs 1 and 14.

74

Schutter, Olivier de, Cordes, Kaitlin. Accounting for Hunger. The Right to Food in the Era of Globalization. (2011). P. 239 - 264 (Ferrer Moreu, Loreto).

75

Ibid.

FAO. Voluntary Guidelines to support the progressive realization of the right to food in the context of national food security (2004); Schutter, Olivier de, Cordes, Kaitlin. Accounting for Hunger. The Right to Food in the Era of Globalization. (2011). P. 239 - 264 (Ferrer Moreu, Loreto).

76

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At the UN Millennium Summit in the year 2000, the Millennium Declaration has been adopted which included the Millennium Development Goals (MDGs). MDG No. 1 was to eradicate extreme poverty and hunger. Again, the aim was to reduce the number of people suffering from hunger by half. In order to achieve this MDG, increased ODA had been pledged. Also, obstacles in mobilising resources for sustainable development in the context of the right to adequate food have been recognised. Therefore, in 2002 the Monterrey Consensus has been adopted. This Consensus addresses the issue of ODA effectiveness and explored new sources of financing.77 The 2005 Paris Declaration on Aid Effectiveness provided guidelines to improve the quality and impact of aid. It also promoted transparency and mutual accountability, by providing a number of indicators to measure progress.78 In 2015, the Sustainable Development Goals (SDGs) were adopted as a successor of the MDGs. SDG No. 2 aims at ending hunger, achieving food security, improving nutrition and promoting sustainable agriculture. With regard to international cooperation, SDG No. 2 mainly focusses on enhancing agricultural productivity in developing countries and on international trade policies.79 Types of food aid After having acknowledged the before mentioned legal documents, three distinctive categories of food aid can be recognised. The first type is programme food aid. This is foreign aid which is provided through food. It aims at promoting economic development and influencing the payments balance. Secondly, project food aid can be recognised. Project food aid is free in-kind aid which is distributed within a development project. It aims at strengthening safety measures (especially for vulnerable groups) and it promotes development. Lastly, there is emergency food aid. Emergency food aid occurs in situations of imminent starvation and aims at providing humanitarian relief. 80 Food sovereignty Approaching food aid from a human rights based perspective acknowledges that States aim at fulfilling the right to adequate food through providing food aid. This approach results in major policy implications, which have not been properly addressed in the majority of cases. These policy implications have been outlined by the former United Nations Special Rapporteur on the right to food (UNSR). In his report to the Human Rights Council it is outlined that under international law an obligation to international cooperation is imposed. International assistance needs to comply with certain requirements, such as nondiscrimination, accountability, transparency and participation. When evaluating the effectiveness of food aid, normative aspects of the right to food need to be considered.81

Schutter, Olivier de, Cordes, Kaitlin. Accounting for Hunger. The Right to Food in the Era of Globalization. (2011). P. 239 - 264 (Ferrer Moreu, Loreto).

77

78

Ibid.

79

United Nations. Sustainable Development Goals, 17 Goals to Transform Our World. (2015).

80

Schutter, Olivier de, Cordes, Kaitlin. Accounting for Hunger. The Right to Food in the Era of Globalization. (2011). P. 239 - 264 (Ferrer Moreu, Loreto).

Ibid; Schutter, Olivier de, UN Special Rapporteur on the Right to Food. “Background Document: The Role of Development Cooperation and Food Aid in Realizing the Right to Adequate Food: Moving from Charity to Obligation, delivered to the Human Rights Council, 10th session”. (2009).

81

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For addressing the underlying causes of food insecurity, food aid is not the appropriate instrument. This has been concluded by experts conferences, such as those mentioned earlier in this chapter. Neither is it beneficial for advancing sustainable development in most situations. However it is considered a crucial tool in situations of acute food shortages and immediate starvation. Effectively implementing a human rights based approach to food aid could be significantly beneficial for both effectiveness and quality of food aid. This implies applying food aid as an instrument for fulfilment of the right to adequate food.

Human rights provide a framework of international obligations for recipient States as well as donor States.

In addition to this a human rights based approach emphasises values such as accountability and participation.82 Instead of aiming at food security through international food aid, it is argued that States should aim at achieving food sovereignty. The concept of food sovereignty is defined in the 2001 Havana Final Declaration of the Global Forum on Food Sovereignty as follows.83 “[…] the people’s right to define their own policies and strategies for the sustainable production, distribution and consumption of food that guarantee the right to food for the entire population, on the basis of small and medium-sized production, respecting their own cultures and the diversity of peasant, fishing and indigenous forms of agricultural production, marketing and management of rural areas, in which women play a fundamental role.”84 The underlying causes of hunger can be addressed by applying food sovereignty as a development model.

Merely providing food aid does not fulfil the complete range of international obligations of States with respect to the right to adequate food.85

82

Schutter, Olivier de, Cordes, Kaitlin. Accounting for Hunger. The Right to Food in the Era of Globalization. (2011). P. 239 - 264 (Ferrer Moreu, Loreto).

83

Ibid.

84

Global Forum on Food Sovereignty, Havana, Cuba, Final Declaration. (2001).

Schutter, Olivier de, Cordes, Kaitlin. Accounting for Hunger. The Right to Food in the Era of Globalization. (2011). P. 239 - 264 (Ferrer Moreu, Loreto).

85

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Food used for other purposes

As a result of global population growth, global demand for energy has also increased. Currently fossil energy sources remain an important source for fulfilling our energy demand. Adverse environmental effects are inherent to this type of energy source. In order to mitigate the adverse environmental effects from the transportation sector, policies have been adopted which aim at promoting the use of biofuels. The European Union is a well-known actor in this regard, by having set biofuel targets for its community.86

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3.2

These biofuels however, have an impact on the right to adequate food. This occurs because biofuels consist of crops like corn and soybeans (first generation biofuels) or crops byproducts (second generation biofuels), which are processed into ethanol in order to provide a substitute for fossil fuels. Increased biofuel demand can cause reduced land availability for food production, increased food prices, decreased availability of water and other effects. In addition to this, biofuels also may have adverse environmental effects which relate to fertilisers usage, soil nutrients deficiency and erosion.87 For States it is important to mitigate or neutralise adverse consequences of biofuel production on the right to adequate food. Therefore the FAO calls upon States to adopt bioenergy governance based on human rights. These actions can be considered responsibilities of States imposed by their obligations under the right to adequate food (most noticeably: the obligation to respect).88 In the domestic context, States need to ensure that biofuel policies do not infringe on the right to adequate food of right holders which fall under its jurisdiction. In this regard it is essential for States to comprehensively asses its biofuel policies. Potential effects on land, water, crops and other resources should be part of such an assessment as well as methods of mitigating adverse effects. Therefore it is of importance that the relation between biofuel policies and the right to adequate food is analysed from a human rights perspective, because biofuel policies can interfere with both the physical accessibility and economical accessibility of adequate food. In line with the attention for the most vulnerable people as subjects of the right to adequate food, these people need to be granted due attention in this assessment.

Given the long term effects of biofuel policies, it is essential to consider prospective population growth in this assessment as well as expected future increase of demand for biofuels.89 In an international context, States are under the obligation to refrain from infringement on the right to adequate food of people outside its jurisdiction. Because the biofuel targets of the developed world can result into the risk of jeopardising the right to food of people in other States, global governance on biofuels should include human rights risks. Extraterritorial obligations related to the right to adequate food should be taken into account when developing biofuel policies. This equally applies to other policy areas. Also States should assess whether alternative methods of achieving the underlying goals of biofuel targets exist, which result in less risks with regard to adverse effects on the right to adequate food.90

Schutter, Olivier de, Cordes, Kaitlin. Accounting for Hunger. The Right to Food in the Era of Globalization. (2011). P. 95 - 134 (Cloots, Ann Sofie).

86

Hospes, Otto, Hadiprayitno, Irene. Governing food security. Law, politics and the right to food. (2010). P. 240 - 245 (Rosso Grossman, Margaret); Schutter, Olivier de, Cordes, Kaitlin. Accounting for Hunger. The Right to Food in the Era of Globalization. (2011). P. 95 - 134 (Cloots, Ann Sofie).

87

88

Schutter, Olivier de, Cordes, Kaitlin. Accounting for Hunger. The Right to Food in the Era of Globalization. (2011). P. 95 - 134 (Cloots, Ann Sofie).

89

Ibid.

90

Ibid.

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Jurisprudence

In order to execute a comprehensive legal analysis, it is considered relevant to address the available jurisprudence. In the context of the right to adequate food, three landmark cases have been recognised.

The major subject of all three cases is the justiciability of the right to adequate food, mainly in relation to a national constitution. Since this aspect of the right to adequate food is not necessarily subject to change as a result of global population growth and the purpose of this report, other than perhaps increased occurrence, these landmark cases will not be addressed in-depth.91

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3.3

Perhaps most famous is the Grootboom case in South Africa dating from the year 2000. The case related to the right to adequate housing, derived from the progressive 1994 South African Constitution. However the Supreme Court judgement confirmed the justiciability of SEC-rights in general and introduced the reasonableness test, by which performance of the State in approaching SEC-rights can be measured.92 In the case People’s Union for Civil Liberties v. Union of India & Others, the Indian Supreme Court in rulings between the year 2001 and 2003 confirmed the justiciability of the right to food under the Indian Constitution. The Supreme Court recognised the right to food and ordered the State to take several measures, entailing the expenditure of resources.

Also noteworthy is a case dating from the year 1996 before the Swiss Federal Court. In its decision the Swiss Federal Court ruled that a justiciable claim for assistance can be based on the right to adequate food.93 No directly relevant jurisprudence in relation to the purpose of this report has been found to be available at the time of research.

91

Food and Agriculture Organization of the United Nations. The Right to Food Guidelines. Information Papers and Case Studies (2006). P. 120 - 126.

92

Ibid.

93

Ibid.

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FOUR. IN CONTEXT

Chapter four builds upon the earlier chapters of this report by placing the obligations of States with respect to the right to adequate food in the context of a growing global population. This chapter addresses the contextual relevance of these obligations and analyses how these will be influenced by global population growth. Furthermore, the added value of Sustainable Development Goal No. 2 is critically reviewed and lex ferenda is addressed.

4.1

Impact94

To start off, a finding that can be identified is that there exists a relation between obligations for States within the international human rights framework — more specific the right to adequate food — and the phenomenon of global population growth. Since in unaltered circumstances, the equal available supply of food needs to be distributed among a larger number of people. This inherently has adverse effects, hereby putting realisation of the right to adequate food under pressure. However, the relation between the phenomenon and the right is more complex, as will subsequently be explained.

The effect of global population growth on the right to food is accelerated by evolving behavioural patters, especially in developed parts of the world. As a result of increased prosperity, food demand increases and shifts to more resource-intensive food categories. This results in potential consequences for the right to adequate food larger than what is to be expected by looking separately at projected population increases.

When analysing the areas where population growth is expected to occur, it is noteworthy that these, — in numerous cases — parallel the areas where the right to adequate food at this moment is not being fully realised or is at risk of not being fully realised. This situation can predominantly be recognised in developed parts of the world. However, when looking at the underlying causes of lacking realisation of the right to adequate food in these areas, it becomes obvious that developed States are a factor.

As a result of developed States’ policies with regard to biofuels (and other subjects), adverse effects are caused to the realisation of the right to adequate food in developing States. The international human rights framework is capable of imposing international, internationalised and extraterritorial obligations on States.

The right to adequate food in such a way also imposes obligations on States beyond its domestic territory.

In the context of biofuels this results into the obligation for States to perform comprehensive assessments of its national policies with regard to promoting biofuels and hereby consider the potential extraterritorial effects of these policies. Since population growth will also result in increased energy demand, and therefore also increased biofuels demand, the importance and occurrence of such policy assessments will most likely increase dramatically.

The contents of this section are based upon analyses in previous parts of this report, where references to existing literature have been included.

94

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Whereas biofuels policies are concretely exemplary for having indirect effects on realisation of the right to adequate food in other States, the obligation to perform comprehensive assessments equally applies to other policy areas having extraterritorial effects with regard to the right to food. This extents to for example food policies discouraging resource-intensive food consumption (such as meat and dairy) and food waste policies. The importance of these policy areas will increase as a result of global population growth.

In addition to the before mentioned State obligations, States also are under an obligation to cooperate internationally, in order to realise the right to adequate food. The obligation to cooperate internationally and the interpretation of this obligation is part of both hard and soft international law instruments.

Different types of food aid are commonly applied in order to comply with the obligation to cooperate internationally. In order to reach the threshold of full compliance with the international obligations in the context of the right to adequate food, this however is not sufficient. In order to fulfil the full range of obligations, adequate actions should be undertaken in pursuance of food sovereignty. As a result of global population growth and its potential adverse effects on realisation of the right to adequate food, this might lead to a greater amount of official development assistance attributed to food sovereignty, in order for developed States to reach the threshold of full compliance with its obligation to cooperate internationally in the field of the right to adequate food.

The justiciability of and accountability for extraterritorial obligations of the right to adequate food remains a matter of interest. It is interesting to see what will be the effect and added value of The Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights (2011) in the future. 95

ETOs Consortium. 2011 Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights (2013).

95

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SDG No. 2: critical review

The Sustainable Development Goals (SDGs) are part of The 2030 Agenda for Sustainable Development which was adopted at the UN Summit in September 2015 and came into force in January 2016. Since this is the most recent significant introduction in the field of the right to adequate food, this section critically reviews this development and addresses how it relates to the earlier presented relevant implications and obligations of States.96

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4.2

SDG No. 2 comprises the following central goal: “End hunger, achieve food security and improved nutrition and promote sustainable agriculture.”97 The complete consolidated text of SDG No. 2 is included as annex E in this report.

NGO’s perspective Arguably one of the most important Non-Governmental Organisations (hereafter: NGOs) in the field of the right to adequate food is FIAN International (hereafter: FIAN). FIAN is an international human rights organisation that has advocated for the realisation of the right to adequate food since the year 1986. 98 As NGOs often tend to do, FIAN holds a quite activistic view towards the SDGs in general and SDG No. 2 in particular. FIAN’s critics mainly aim at the relation between the SDGs and business interests, especially from the developed parts of the world. In their view corporate influence on the SDGs has been too substantial and derogates the influence of governments, which are elected and mandated to represent the interests of people.99 When analysing FIAN’s critics, several aspects can be recognised. First of all, they state that international policies are to a certain extent based on the agendas of the corporate sector, instead of human rights. This calls for the introduction of accountability mechanisms and regulation of TNCs. Secondly, FIAN argues that increasing direct and indirect corporate funding of the UN imposes the risk of embracing business concepts within the UN and therefore compromising its legitimacy. Market mechanisms can be destructive for human rights when improperly regulated. Subsequently, according to FIAN businesses intervene with policy making on both the national and the international level. Initiatives such as multi-stakeholder fora and public-private partnerships facilitate the penetration of public policy with corporate interests and thereby undermine the UN. Finally, FIAN calls upon States to secure public funding of the UN, create UN capacity for monitoring cooperation with the business sector and facilitate corporate accountability as well as to liberate the UN of entanglement with the business sector. 100

96

United Nations. Sustainable Development Goals, 17 Goals to Transform Our World. (2015).

97

United Nations. “Transforming Our World: The 2030 Agenda for Sustainable Development” (2015).

98

FIAN International. "Who We Are”.

99

FIAN International. "Statement of FIAN International on the SDGs and the 2030 agenda for sustainable development.” (2015).

100

Ibid.

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Special Rapporteur’s perspective The current UN Special Rapporteur on the right to food — Ms. Hilal Elver — has expressed her view on the SDGs. In a statement to the UN General Assembly she argues that the SDGs should adopt a rightsbased approach and entail mechanisms by which a transparent participatory process can be established that includes those people who are experiencing hunger, injustice and extreme poverty. Accountability mechanisms need to be created in order to provide victims and representing organisations with methods to hold States accountable for failure to comply with their obligations. Special interest is desired for vulnerable groups, women’s equal access to land and resources and specific targets for asset redistribution among social groups.101 States’ perspective States hold very diverse views with regard to the right to adequate food and their respective obligations.

Some consider it as an infringement on their policy freedom or even their State sovereignty, although this is hardly ever publicly admitted. To the outside a strategy of ‘window dressing’ is adopted, whereas in international negotiations the least feasible obligations are pursued. Other States accept their obligations as an inherent consequence of their nature as a sovereign State and might aim at increasing obligations for other States to equal their own commitments.

Concluding remarks As can be identified in most internationally negotiated goals, SDG No. 2 also seems to be a compromise as a result of concessions in order to find international agreement. SDG No. 2 would have benefitted from specific targets which are more suitable for monitoring.

Furthermore, it would have been helpful to include specific targets aiming at adopting measures that aim at increasing accountability and establishing transparent participatory processes. In addition to this, the relation with the business sector could have been embraced more extensively, given their influence in our contemporary globalised world.

It would have been advisable to distinguish the support of TNCs in implementing the right to adequate food from their influence in policy making processes. Also, it seems beneficial if specific obligations were imposed on TNCs for which they could subsequently be hold accountable.

SDG No. 2 could have potentially been of a greater significance. However it appears to be a reticent compromise of the international community, which is not optimally prepared for global population growth.

United Nations, Office of the High Commissioner of Human Rights. “Statement by Hilal Elver, Special Rapporteur on the Right Food at the 69th session of the General Assembly Third Committee Item 68 (b & c): Human Rights” (2014).

101

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Lex ferenda

Based on the critical analyses on the impact of a growing global population on the obligations for States in relation to the international human right to adequate food in previous parts of this report and having critically reviewed the added value of SDG No. 2, this section focuses on the respective aspects of the States’ obligations that could be adapted in international law, in order to become (more) suitable to the phenomenon of global population growth. This is approached by presenting desirable effects and policies as a reference point and subsequently arguing what law should realise this.

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4.3

Limiting population growth In order to mitigate potential adverse effects resulting from global population growth on fulfilment of the right to adequate food, measures can be taken on either the supply side or the demand side of the issue.

Measures on the supply side in this context would result in increasing the amount of available food. On the other hand measures taken on the demand side would result into limiting the population growth as a result of governmental measures.

A rather extreme example of a policy aiming at limiting population growth was China’s one-child policy, which has recently been abolished. Since around the year 1980, couples in China had basically been restricted to having only one child. This policy has conflicted with several international human rights, such as reproductive rights. It has contributed to the practice of coercion, violence, forced abortion, sterilisation and other violations. Therefore it is not desirable that international law leads to such policies, despite its effectiveness in limiting population growth.102 Whereas a hard restriction on the number of children allowed to give birth to is considered too radical, less radical measures can also be effective in contributing to limitation of population growth. Such measures can be human rights based voluntary family planning programs. These can be supported by economic measures providing a financial incentive to couples to have only a limited number of children.

Entitling parents to a higher amount of child support allowances for their first child and a lower amount for subsequent children is an example of such a measure.

It is arguably beneficial if international law places States under an obligation to consider measures resulting in limiting population growth, in situations where increasing the supply of food is not possible.

This obligation of consideration in situations of lacking alternatives can become a legally binding aspect of international law. It could be part of a multilateral treaty or a successor of the SGDs and eventually might become a rule of customary international law.

Types of food consumption Section 1.3 of this report addressed the divergent needs in the field of raw material requirements and the differing environmental impact of different types of food consumed by humanity. It has become clear that there are specific types of food, such as meat and dairy products, which are significantly more resourceintensive than other types of food with comparable dietary features. These resource-intensive types of food generally increase in popularity as a result of economical development.

102

Frett, Latanya Mapp. “The End of China’s One-Child Policy Isn’t Enough”. TIME (2015).

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Food consumption has a relation with cultural traditions and personal preference. Therefore freedom in food consumption can be considered an important value. However, certain types of food, especially animal products, are being offered at a price which does not reflect its integral cost price. Because certain costs are externalised, such as adverse environmental effects, healthcare costs and resource demand, these costs become the responsibility of the society instead of the consumer of the specific food. Internalising such costs would lead to an increased price of resource-intensive products, which would lead to less demand and therefore an exponential decrease of resources used. These resources could be used for increasing the fulfilment of the right to adequate food locally or extraterritorially.

In order to legally oblige States to adopt economic policies aimed at internalising costs of resourceintensive types of food, this could become part of a binding multilateral treatment or prospective successors of the SDGs. This obligation could also be beneficial for intergenerational solidarity and fulfilment of the rights of future generations, by not making them responsible for externalised costs of current generations.

Allocation of resources
 In section 3.2 of this report the usage of food for other purposes than feeding humanity has been addressed. In order to stimulate a balanced allocation of resources, obligations concerning the right to adequate food need to be an integral part of future international law. This could lead to binding targets in the field of biofuels not being implemented until both local and extraterritorial obligations from the right to food have been fulfilled. In future international law documents such clauses could be included. Legislation from the EU or similar organs could also put States under such obligation.

In addition to this, national policies could be based on a comprehensive impact assessment in which effects on fulfilment of the right to food are a factor. By conducting such an assessment potential adverse effects are being recognised and taken into consideration when developing State policies. Further development of the right to adequate food could place States under this obligation.

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CONCLUSION This thesis confirms and addresses the impact of the phenomenon of a growing global population on the obligations of States in relation to the international human right to adequate food. In the foreseeable future effects of a growing global population are expected to occur. This results into intensification and expansion of the respective obligations of States.

The right to adequate food is a profound element of the international human rights framework. At present, this right is not being fully realised everywhere. Global population growth will cause increased pressure on the obligations of States, as a result of both domestic and extraterritorial developments.

Obligations of States with a particular significance in this context are the obligations to cooperate internationally and to consider and mitigate extraterritorial effects. Pursuance of food sovereignty and comprehensive assessments will therefore be of increased importance in the (near) future.

SDG No. 2 has proven to possess certain deficiencies and therefore is not capable of adequately handling the projected developments. In addition to this instrument of international law, legal progress can be realised in the field of limiting population growth, types of food consumption and allocation of resources.

Having read this report, the following question might arise: Is our world for seven billion people also an adequate world to feed over ten or eleven billion people? When considering all the foregoing, the most appropriate answer seems to be: in unaltered circumstances — probably not. Therefore it is of great significance that the respective obligations of States become suitable for this phenomenon.

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ANNEX. A
 History (supplement) In order to provide a complete analysis, the historical perspective of global population growth is addressed. By acquiring knowledge about relevant developments which have historically occurred, the current situation as well as prospective trends can be understood and placed in the correct context.

For thousands of years, global population grew at only a relatively slow rate. However, in the last two hundred years, global population has grown from less than one billion to over seven billion people. This is a dramatic increase which has not nearly been equaled during any part of the history of humanity.103 The previously mentioned statements are visualised in the long-term chart104 below, which depicts the world population from the year 10.000 BCE (Before the Common Era) until the year 2015.105

As shown in the previous chart, global population grew steadily for a long time. In the year 10.000 BCE global population consisted of approximately four million people, which grew to about 265 million in the year 1.000 CE. As a result of increased living standards and improved health, the growth rate has increased dramatically since the onset of modernity. In the year 1850 global population reached the number of one billion. The year 1962 can be identified as being the peak in annual growth rate. The exponential growth rate since then has been falling. Subsequent chart106 visualises the world population and its annual growth rate from the year 1750 to the year 2010 as well as projections until the year 2100.107

103

Roser, Max, Ortiz-Ospina, Esteban. "World Population Growth." (2016).

104

Ibid.

105

Ibid.

106

Ibid.

107

Ibid.

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What these global numbers do not show is the fact that growth rates in individual countries started and ended increasing at different points in time. The regions Africa, China and India historically have been — and currently are — the most populated regions. In general, developing countries have shown higher growth rates over the last century, when compared to their developed counterparts.108 Based on this analysis the following conclusion can be drawn. After a long period of steady global population growth, exponential growth emerged since the modern era. Currently, annual global population growth still exists, while being at a more modest level when compared to the peak growth period. This leaves us with an all time peak in global population, which currently remains growing — at different rates in several areas — as a present reference point.

To put the current global population into context: approximately six and a half percent of all people ever born, are alive at this moment. This may be considered noteworthy given the notion that the modern form of humanity appeared approximately fifty thousand years ago.109 110

108

Ibid.

109

Ibid.

110

Haub, Carl. "How Many People Have Ever Lived on Earth?" Population Reference Bureau (2015).

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ANNEX. B ‘Overpopulation’ Given the theme of this report, it is considered interesting and relevant to address the notion of overpopulation. This section answers the question “what can be considered overpopulation?” and assesses whether the question “does overpopulation already occur or is it expected to occur in the (near) future?” is relevant. Hereby predicating upon earlier paragraphs of this chapter.

Some experts consider earth at the current moment ‘overpopulated’ or predict ‘overpopulation’ will occur in the (near) future. ‘Overpopulation’ relates to inherent capability of the earth to cope with the effects of global human population. It assumes that once a certain disruption of the balance between earth and human population occurs, this misbalance or the reason for it can be named ‘overpopulation’. Expert’s opinions about when the features of this point have been reached differ.111 ‘Overpopulation’ however is a problematic and ambiguous term. The reason for this statement is that global human population, looked at without considering its contextual elements, does not threat to disrupt the balance earlier mentioned. The substantial adverse effects of (a growing) global human population only appear when considering current or recent human behaviour. This behaviour though, is largely not inherent to human existence.112 Given certain facts, such as factory dairy farms generating sewage in a multiple rate of human sewage, raising farm animals uses three-quarters of global agricultural land and farm animals being related to the emission of excessive amounts of the greenhouse gas methane, an overpopulation of farm animals seems a more appropriate characterisation than human overpopulation. When considering the fact that human population’s current behaviour is responsible for this as well as other effects, perhaps ‘overconsumption’ is the appropriate characterisation. This terminology acknowledges the notion that global human behaviour can adapt and thereby result in a global population of an equal size having substantially less adverse effects that are considered features of ‘overpopulation’.113 Based on the analysis before, the typology ‘overpopulation’ has not been used in this report. The occurrence of ‘overpopulation’ has also not been discussed. The underlying principles of this notion have been addressed objectively by its features and effects, without hereby discussing the possible appliance of this allegedly ambiguous term.

111

Emmott, Stephen. "Humans: The Real Threat to Life on Earth." The Guardian (2013); Emmott, Stephen. Ten Billion. Documentary (2015); Andersen, Kip. “Cowspiracy, the Sustainability Secret.” Documentary (2014).

112

Bradshaw, Corey J.A, Brook, Barry W. "Human Population Reduction Is Not a Quick Fix for Environmental Problems." The Environment Institute and School of Earth and Environmental Sciences, The University of Adelaide (2014); Monbiot, George. "There’s a Population Crisis All Right. But Probably Not the One You Think." The Guardian (2015); Pearce, Fred. "It’s Not Overpopulation That Causes Climate Change, It’s Overconsumption." The Guardian (2014); Andersen, Kip. “Cowspiracy, the Sustainability Secret.” Documentary (2014); Emmott, Stephen. Ten Billion. Documentary (2015).

113

Ibid.

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ANNEX. C Legal context (supplement) The right to adequate food is part of the international human rights law framework. International human rights law can be recognised as a broad field of law that has grown considerably since last century. Since the end of the Second World War, human rights law has developed progressively. The Universal Declaration of Human Rights — which was adopted in 1948 — is considered arguably the most significant document in the history of international human rights law.114 International human rights law is part of the broader category of public international law. Therefore the more common rules related to issues such as State responsibility and treaty interpretation can also be applied to human rights treaties. Nevertheless, human rights treaties also contain significant features, these will subsequently be analysed briefly.115 Human rights are founded upon several theories, such as liberal and moral ones. Therefore, different definitions of human rights can also be provided, such as a philosophical definition and a legal definition.

Given the purpose of this report, focus will be on the latter. A legal definition for human rights is:116 “Human rights are entitlements to the protection of human dignity, laid down in legal texts, that entail rights for individuals and obligations for States.” 117 The basic principle underlying the system of international human rights is the idea of the universality of human rights. This universal nature of human rights is recognised in the preamble of the Universal Declaration of Human Rights (1948), in the 1993 Vienna Declaration and in other legal documents. 118 In practice, human rights can be enacted in order to protect essential values such as freedom, equality, dignity, freedom and justice. They can also act as methods for social and political change, such as ending systems based on racial discrimination.119 Several conditions apply to the recognition of a human right as such. First of all, there has to be a consensus on a social demand, a normative value or idea, which arises from a society. There also needs to exist a certain link with human dignity. The content of a norm has to be sufficiently clear. In order to establish a legally binding norm, it needs to be incorporated into a legal instrument, such as a treaty.

Lastly, a human right has to be enforceable. A remedy for enforcement of the right against a duty-holder needs to be available.120

114

Bantekas, Ilias, Oette, Lutz. International Human Rights Law and Practice. (2013). P. 9 - 27.

115

Ibid.

116

Ibid.

117

McCrudden, Christopher. Human Dignity and Judicial Interpretation of Human Rights. European Journal of International Law (2008).

118

Bantekas, Ilias, Oette, Lutz. International Human Rights Law and Practice. (2013). P. 9 - 96.

119

Ibid.

120

Bantekas, Ilias, Oette, Lutz. International Human Rights Law and Practice. (2013). P. 9 - 96.

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Different legal sources of human rights have developed since their emergence. Constitutions and secondary legislation can be sources at a domestic level. At an international level, treaties and soft-law documents are sources. In addition to this, customary law, jus cogens121 and case law can form legal sources of human rights.122 

121

Jus cogens (also named ius cogens) = certain fundamental overriding principles of international law, from which no derogation is ever permitted.

122

Bantekas, Ilias, Oette, Lutz. International Human Rights Law and Practice. (2013). P. 9 - 96.

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ANNEX. D
 Economic, social and cultural rights The economic, social and cultural rights (hereafter: ESC rights) form a distinctive group within the international human rights framework. When looked at from an idealogical and historical perspective, ESC rights have been considered arguably weaker when compared to civil and political rights. Currently the legal status of ESC rights is still being debated by certain governments, policy makers and academics.123 Traditionally, ESC rights have been viewed at as human rights exclusively granted indirectly to individuals through governments. They require positive State action and contain positive obligations. ESC rights have traditionally also been looked at as only containing goals of governmental programmes and as not being possible to invoke them directly against States.124 Opposing the traditional view on interpreting human rights treaty provisions, is a more modern approach, developed and applied by the United Nations Treaty Bodies and the European Court of Human Rights. This view entails that all human rights imply both positive and negative dimensions and obligations. To be more precise, it entails the obligations to respect, protect and fulfil. These obligations will be analysed with respect to the right to adequate food in section 2.4 of this report.125 The leading legal document with respect to ESC rights is the International Covenant on Economic, Social and Cultural Rights (1966). According to Article 2(1) of this covenant, implementation of ESC rights can be characterised by three features. These are: progressive realisation, availability of resources and policy freedom. The General Comments of the United Nations Committee on Economic, Social and Cultural Rights have been relevant to render these features and the extent of the obligations of specific ESC rights more concrete.126 All human rights can be analysed from a normative perspective in terms of the substance (also named: the object), the subject and the duty bearer — with respect to an individual right. In subsequent paragraphs the right to adequate food will be analysed based on these three perspectives.

123

Bantekas, Ilias, Oette, Lutz. International Human Rights Law and Practice. (2013). P. 366 - 407.

124

Ibid.

125

Ibid.

126

Ibid.

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ANNEX. E Sustainable Development Goal No. 2 “Goal 2. End hunger, achieve food security and improved nutrition and promote sustainable agriculture 2.1 By 2030, end hunger and ensure access by all people, in particular the poor and people in vulnerable situations, including infants, to safe, nutritious and sufficient food all year round 2.2 By 2030, end all forms of malnutrition, including achieving, by 2025, the internationally agreed targets on stunting and wasting in children under 5 years of age, and address the nutritional needs of adolescent girls, pregnant and lactating women and older persons 2.3 By 2030, double the agricultural productivity and incomes of small-scale food producers, in particular women, indigenous peoples, family farmers, pastoralists and fishers, including through secure and equal access to land, other productive resources and inputs, knowledge, financial services, markets and opportunities for value addition and non-farm employment 2.4 By 2030, ensure sustainable food production systems and implement resilient agricultural practices that increase productivity and production, that help maintain ecosystems, that strengthen capacity for adaptation to climate change, extreme weather, drought, flooding and other disasters and that progressively improve land and soil quality 2.5 By 2020, maintain the genetic diversity of seeds, cultivated plants and farmed and domesticated animals and their related wild species, including through soundly managed and diversified seed and plant banks at the national, regional and international levels, and promote access to and fair and equitable sharing of benefits arising from the utilization of genetic resources and associated traditional knowledge, as internationally agreed 2.a Increase investment, including through enhanced international cooperation, in rural infrastructure, agricultural research and extension services, technology development and plant and livestock gene banks in order to enhance agricultural productive capacity in developing countries, in particular least developed countries 2.b Correct and prevent trade restrictions and distortions in world agricultural markets, including through the parallel elimination of all forms of agricultural export subsidies and all export measures with equivalent effect, in accordance with the mandate of the Doha Development Round 2.c Adopt measures to ensure the proper functioning of food commodity markets and their derivatives and facilitate timely access to market information, including on food reserves, in order to help limit extreme food price volatility” 127

127

United Nations. “Transforming Our World: The 2030 Agenda for Sustainable Development” (2015).

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Graphical credits: - Cover page: Apple Inc. - Closing page: Global Population Speak Out

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AUTHOR Levi Renneberg levirenneberg@live.nl linkedin.com/in/levirenneberg @LeviRenneberg

INSTITUTE Maastricht University Faculty of Law Master in Globalisation and Law Specialisation Human Rights www.maastrichtuniversity.nl