The 3rd Annual Abraham Horwitz Annual Lecture

The entitlements that have to be promoted for eliminating persistent undernutrition are not merely of food, but also of health care, medical attention and epidemiological environment.

(Dr and Sen, 1989)

Introduction

The human rights approach offers a framework for analyzing governmental actions in the field of nutrition and health. Food and nutrition specialists should incorporate the human rights approach in addressing malnutrition, inadequate health, and poverty issues. International human rights law is relevant for the protection of people’s access to food, and in this regard, I will focus on the meaning and implications of the right to health and the right to food, and on the implications of the fact that they are recognized as ‘economic, social and cultural’ human rights under international law. I will provide examples of what might possibly constitute governmental violations of these two human rights. It should be taken into account that my particular expertise is in health as a human right.

The ultimate purpose of nutritionists is to improve the nutritional status of the world’s population. I will explain the legal structure for preventing States’ human rights violations in this field and for holding States accountable for violations when they occur. In addition, I will suggest that food and nutrition specialists can contribute to a further clarification of the rights to adequate food and health. While the lawyers draw the broad frameworks for these rights, it is the nutritional and health specialists who have the expertise to delineate their precise content.

Human Rights protection for food and health

The international human rights laws that protect people’s access to food and health include both rights that are primarily ‘civil and political’ in nature and rights that are considered ‘economic, social and cultural rights’. The simultaneous relevance of these two kinds of human rights to food and health exemplifies the indivisibility and interdependence of all human rights - civil, cultural, economic, political, and social - as set forth during the Vienna World Conference on Human Rights in 1993 (United Nations World Conference on Human Rights, 1993).

Civil and political rights

Civil and political rights are set forth in various human rights instruments, the most important of which is the 1966 UN International Covenant on Civil and Political Rights (ICCPR). They include, inter alia, the right to life, the right to a fair trial and the freedom of expression and of religion. They are not necessarily freedom or ‘negative’ rights only, since they can also require States to take a certain ‘positive’ actions, e.g., to reorganize the judiciary system in order to guarantee the right to a fair trial.

The right of all persons to be treated equally under the law, without discrimination, is generally considered a civil or political right, and is confirmed in every international human rights treaty (ICCPR, CERD, CEDAW, etc.). This legal protection against discrimination applies as much to social laws affecting access to food and to health as to political laws affecting access to justice and electoral enfranchisement.

Other civil and political rights are similarly important in protecting people’s health and nutritional status. For example, the (civil and political) right to take part in the conduct of public affairs enables people to change their food or health situation at a political level (ICCPR Article 25). The right to peaceful assembly (ICCPR Article 21) and to freedom of expression play a similar role. Through the right to receive and impart information, moreover, people can inform each other about, for example, how to grow crops and how to avoid infectious diseases (ICCPR Article 19(2)).

Enforceability of health and food issues through civil and political rights

At a more enforceable level, civil and political rights may serve for the protection of people’s health and food status. That is to say, health and food issues may be enforced through implementation procedures that are available for civil and political rights, e.g. reporting procedures and individual complaint procedures. Much depends, in this regard, of the creativity of lawyers and others to apply these rights.

Reporting procedures - The UN Human Rights Committee (HRC) (the UN body charged with overseeing implementation of the ICCPR) has declared that the civil and political right to life protects certain health and food concerns. In its General Comment 6 [16], it stipulated that it would be desirable for States parties to take ‘all positive measures to reduce infant mortality and to increase life expectancy, especially by adopting measures to eliminate malnutrition and epidemics’ (UN Human Rights Committee 1985). In its reporting procedure, the HRC occasionally gives follow-up to this statement by paying attention to infant and child mortality rates in States Parties (Toebes, 1999, p. 160).

Complaint procedures - Case law on civil and political rights demonstrates that several health and food-related issues have been addressed within the framework of civil and political rights’ complaint procedures. Among other things, such cases concerned the obligation to provide access to health care services (including the obligation not to deprive people from medical treatment), the obligation to offer protection against environmental health threats, and the obligation to offer adequate nutrition and medical treatment during (pre-trial) detention. In particular the right to life, the right to physical integrity, the right to family life, the right to enjoy one’s own culture and the right to non-discrimination have offered protection against threats to people’s health and nutritional status before various judicial bodies. The following decisions of the HRC illustrate this:

· In the case of Conroy Levy v. Jamaica (HRC 719/1996), the author of the complaint (a detainee) stated that he was ‘detained twenty-three hours a day in a cell with no mattress, other bedding or furniture, that the cell has no natural light and inadequate sanitation, and that the food is not palatable’. The HRC found that these circumstances disclosed a violation of ICCPR Article 10(1) (the right of detained persons to be treated with dignity). Clearly, the right of detained persons to be treated with dignity was considered to include a right to adequate health, sanitation, and food.

· A Russian citizen with tuberculosis declared before the HRC that his right to life was threatened because of lack of money for medicine due to the hyperinflation in the Russian Federation (HRC 784/1997). The complaint was declared inadmissible because it did not substantiate why the hyperinflation would amount to a violation of the rights in the ICCPR. Nevertheless, the case shows that a right to medical care may arise within the framework of the right to life.

At the national level, health and food issues have also been addressed within the framework of civil and political rights that are set forth in national constitutions and in international human rights conventions. Noteworthy in this respect is the case law of the Indian Supreme Court:

· In the case of Paschim Banga Khet Mazdoor Sanity and others v. State of West Bengal and another, the claimant, who had fallen off a train and as a result had suffered serious injuries, was turned away by various public hospitals (A.I.R. 1996). The Court ruled that the failure on the part of a Government hospital to provide timely medical treatment to a person in need of such treatment results in a violation of his right to life under Article 21 of the Indian Constitution. Accordingly, the right to life in the Indian constitution was considered to embrace a right to emergency medical care.

Economic, social and cultural rights

Economic and social rights can be found in, inter alia, the 1966 ICESCR. They include the right to adequate food, health and housing, as well as the right to education and the right to work. They were specifically designed as a whole to protect people’s health and nutritional status as well as other aspects of an adequate standard of living. Just as civil and political rights are important for the protection of economic and social rights, so are the specific economic and social rights relevant to each other. The (economic and social) right to education, for example, may enable people to learn about how to grow their crops. Adequate housing has proven to be of crucial importance for people’s health, and healthy conditions are considered an explicit element of the right to housing.

During the United World Conference on Human Rights in 1993, it was stressed that civil and political rights and economic, social and cultural rights are interdependent, interrelated and of equal importance. In practice, particularly Western States and NGOs have tended to treat economic, social and cultural rights as if they were of less importance than civil and political rights. Reasons for this weaker status are their lack of conceptual clarity, their programmatic character, and the fear of States that recognition of these rights will interfere with their policy choices and will be expensive.

Human rights law, by definition, consists of legal obligations that fall upon the State. It is therefore of use to clarify which obligations result from the separate human rights. A well-known concept in human rights debate concerns the so-called ‘tri-partite typology of State obligations’ (Eide, 1987, Van Hoof, 1984). The ‘respect, protect, fulfil’ typology has been accepted by numerous scholars and NGOs specializing in the field, as well as by the UN. With regard to food, education and health, matrixes have been drawn up containing the various obligations (see Appendix A) (Eide, 1987; Coomans, 1992; Toebes, 1999).

This typology distinguishes between obligations to ‘respect’, to ‘protect’ and to ‘fulfil’ a human right, particularly an economic, social or cultural right. Such obligations to respect, protect and fulfil are inherent to all (economic, social and cultural) human rights. Obligations to respect are more negative in character and require a certain type of State abstention. On the basis of the right to food, for example, States are required to abstain from actively interfering with the access of individuals (say, members of an ethnic minority) to adequate food. Obligations to protect and to fulfil are more positive obligations, in that they oblige States to undertake certain action. On the basis of the obligation to protect the right to food, for example, States are required to adopt the necessary legislation in order to secure safe food production conditions in the factories of private manufacturers. The obligation to fulfil the right to food may require that States take measures to ensure that people have adequate access to food. This typology is more elaborately discussed below.

The right to health and the right to food

Food is important for health because undernourishment makes people vulnerable to illness. Adequate nutrition is of the utmost importance for the healthy development of mothers and children. Some of the main causes of malnutrition are inadequate care for mothers and children, insufficient health services and an unhealthy environment (UN ACC/SCN 1996). Health is, simultaneously, important for food, e.g., because parasitic and other diseases hamper the absorption and retention of nourishment. More generally, adequate health is a condition for people in which they are able to obtain the foodstuffs necessary for their survival and the maintenance of their health (Dr and Sen 1989, p. 267). The most important rights with regard to the maintenance of people’s health and their access to food are accordingly the ‘right to health’ and the ‘right to food’. These human rights grant a number of health-and food-related services and freedoms.

The rights to health and to food are interrelated and have a strong normative overlap. More specifically, CEDAW Article 12 contains the right to health and refers to adequate nutrition during pregnancy, while the CRC Article 24(2) refers to the ‘right to adequate nutritious foods’ for children. A right to healthy foodstuffs is therefore explicitly part of the right to health. One could even claim that the right to food is inherent in the right to health. Similarly, the right to health is heavily implicated in the right to food. Although ICESCR Article 11 stipulates the right to food and does not explicitly refer to health, it is obvious that a right to healthy foodstuffs is an element of the right to food.

This relationship between food and health is demonstrated by the implementation practice of the CESCR, the treaty-monitoring body of the ICESCR. In the context of the right to health, this Committee deals with a number of issues that have both food and health implications. Examples include the high incidence of cardiovascular diseases in a certain country due to an incorrect diet; and a case in which a country was allegedly exporting radioactively contaminated foods (Toebes 1999, p. 123).

Taking into account the interrelated character of both human rights, it is of importance to demarcate more strictly the meaning of the separate rights to health and to food. Given the conceptual lack of clarity that surrounds economic, social and cultural rights, it is important to ask ourselves the question: what is the right to health, and what is the right to food?

The right to health

Where we can find it? - The right to health is firmly embedded in a considerable number of international human rights instruments. Its first international codification was in the Preamble to the Constitution of the World Health Organization (WHO 1946). This provision constituted a point of departure for the further codification of the right to health in several international human rights treaties, the most important and well-known of which is ICESCR Article 12.

Its scope - The right to health can be said to embrace two larger parts: one including elements related to ‘health care’ (including medical care as well as preventive health care services), and another one concerning ‘underlying preconditions for health’ (including safe drinking water, adequate sanitation, occupational health, health-related information).

Its core content - Certain aspects of the right to health may be subject to ‘progressive realization’ (ICESCR Article 2(1)), which implies that States may gradually realize such aspects rather than realizing them immediately. The exploration of new treatments for certain ailments, for example, is an obligation which cannot be realized immediately but only gradually. Poorer States will have fewer resources available to provide the necessary health services to everyone, so that they may progressively seek to achieve a better standard of health. Nevertheless, there is a trend among scholars and activists towards delineating a certain core in the right to health. This core content consists of a set of elements that States have to guarantee under any circumstances, irrespective of their available resources. Inspiration for the core content of the right to health can be derived from the Primary Health Care strategy of the World Health Organization (WHO, 1978). The elements listed below may serve as the core content of the right to health.

Concerning health care:

· maternal and child health care, including family planning
· immunization against the major infectious diseases
· appropriate treatment of common diseases and injuries
· provision of essential drugs

Concerning underlying preconditions for health:

· education concerning prevailing health problems and the methods of preventing and controlling them

· promotion of food supply and proper nutrition

· adequate supply of safe water and basic sanitation

Guiding principles - In addition, there exist a number of guiding principles that together constitute the framework of the right to health. Like the core content of the right to health, they are sufficiently flexible to allow for universal application. In this context, the term ‘health services’ refers both to access to health care services as well as to services necessary for the underlying preconditions to health. I suggest the following guiding principles for the right to health:

· availability of health services: a State must provide health services sufficient for the population as a whole

· financial, geographic and cultural accessibility of health services: health services must be affordable, within reach of everyone, and respect people’s cultural traditions

· quality of health services: the available health services must be of an adequate standard

· equality in access to available health services: health services must be equally accessible to everyone, with due attention paid to the position of vulnerable groups in society (Toebes, 1999, pp. 287-288)

Given the fact that access to adequate food is an explicit part of the right to food, these guiding principles are also relevant for the adequate protection of people’s nutritional status. For example, they require that food be sufficiently available and geographically accessible, affordable, and safe.

State obligations - On the basis of the above-described elements of the right to health, State obligations can now be defined. The following obligations to respect, protect and to fulfil constitute examples of the aggregate of obligations resulting from the right to health (Toebes, 1999, pp. 314-315):

obligations to respect:

· to respect equal access to available health services, and not to impede individuals or groups from their access to the available services

· to refrain from acts that encroach upon people’s health, such as environmental pollution

obligations to protect:

· to take legislative and other measures to assure that people have (equal) access to health services even if provided by private health care parties

· to take legislative and other measures to protect people from health infringements by any private or public health care parties

obligations to fulfil:

· to adopt a national health policy and to devote a sufficient percentage of the available budget to health

· to provide the necessary health services, or to create conditions under which individuals have adequate and sufficient access to health services, including preventative and curative health care services as well as clean drinking water and adequate sanitation

Given that ‘health services’ include adequate food, access to food is an explicit part of the above-mentioned obligations. For example, the obligation to respect would require that the government refrain from acts that encroach upon people’s access to food (e.g., forcibly relocating people from a place where there are means of self-support to a place where there is none).

The right to health and harmful traditional practices

A specific issue that arises within the framework of the right to health concerns the problems surrounding ‘harmful traditional practices’. CRC Article 24(3) refers to the ‘abolishment of traditional practices’, which refers to girl-child circumcision and to other practices ‘prejudicial to the health of children’. Although it is not explicitly mentioned in the right to health articles of the ICESCR and CEDAW, the CESCR and CEDAW Committees deal with the matter in their reporting practices.

CRC Article 24(3) uses the broad term ‘harmful practices’ in order to avoid mentioning female circumcision specifically and additionally, to prevent other practices from being excluded. Other such practices could include facial scarring, problems surrounding dowries and ‘crimes of honor’, early marriage, adolescent childbearing, teenage pregnancies, ritual enslavement of girls, selective abortion, and female infanticide. There are also traditional practices that have a particular relation to food. These are, for example, traditional birth practices such as dietary restrictions, force-feeding for women or preferential treatment for male children such as differential feeding patterns (Working Group on Traditional Practices, 1986/Third report by Halima Embarek, 1999, para. 20).

CEDAW, CESCR, and the CRC Committee have addressed the issue of harmful traditional practices on various occasions. For example, CESCR remarked in 1994 with respect to Mali that legislation in effect for 30 years prohibiting such practices had never been enforced (UN Doc. E/C.12/1994/17, para 14). And in 1997 the CRC Committee recommended Ghana to review all legislation to ensure compliance with the CRC and to develop public campaigns involving all sectors of society with a view to changing attitudes (UN Doc. CRC/C/15/Add.73, 6 June 1997, paras 21 and 42). Recently, Ghana has prohibited several traditional practices illegal under the new Criminal Code (Halima Embarek, 1999, para. 46).

The right to health and privatization of health care services

In most countries public and private health care sectors exist side-by-side. Some States encourage the participation of the private sector in the delivery and management of health services. Privatization of health care services may threaten the (equal) accessibility of health care services, since some private health insurance companies are not open to all citizens and do not treat everyone on an equal footing.

On the basis of the right to health, plans to privatize health care services do not in any way relieve Governments from their obligation to make sure that everyone has access to good quality health care services. To the extent that good quality health care services are not privately available and accessible to everyone, governments should provide health care services publicly. They should make sure that health insurance benefits do not become tied to a person’s particular status, e.g., employment or civil state. Secondly, they should adopt legislation and other measures to ensure that private health providers do not discriminate among their clients.

The right to health and civil and political rights

Finally, it is possible that a certain tension arises between the right to health and civil and political rights, particularly the rights to physical integrity and privacy. On some occasions, measures taken for the protection of the population at large or an individual, may violate the civil and political rights of someone else.

First, it is possible that on the basis of the right to health, the authorities take certain measures for the protection of the health of the population at large. For example, the right to health may require the adoption of inoculation programs in order to prevent the incidence of certain diseases, or the implementation of screening programs in order to prevent the incidence of certain types of cancer. The problems surrounding certain infectious diseases raise illustrative but complicated questions in this regard. For example, a person could be forced to undergo a vaccination for polio, not only for his own benefit, but also because the public at large has a right to be protected against the spread of polio. The question arises, whether the interests of the individual or those of the public at large should prevail. Similar questions may arise surrounding measures taken to protect the public against the spread of HIV/AIDS. Some States are inclined to take certain coercive measures in order to reduce the spread of AIDS. States have adopted transit restrictions, mandatory testing, and even criminal liability for HIV-infected persons (Toebes, pp. 133-135).

Secondly, situations may arise where, on the basis of the right to health, a doctor or the public authorities seek to protect an individual to the detriment of civil and political rights of someone else. A good example concerns situations where pregnant women likely to be HIV-positive refuse to be tested, despite the fact that the unborn child could be provided with life-saving drugs if the mother were known to be HIV-positive. The question arises whether the mother can be forced to undergo the test in order to protect the (right to) health of the unborn. Similar situations may arise if HIV-infected mothers insist on breastfeeding their child, which may risk infection of their child. In SCN News of July 1999, a clear example is provided of such a case. In this case, the child was taken under legal custody and the court subsequently ruled that the parents could retain physical custody on the condition that the mother would not breastfeed the child (see p. 89). In such cases, the question arises whether the mother can be forced to stop breastfeeding. In other words, a balance has to be struck between the assumed right to health of the unborn and the right to physical integrity and privacy of the mother.

Caution is to be observed if the right to health is used to justify certain types of governmental health measures. In each specific case, a balance has to be drawn between the need to protect the health of the public at large (infectious or other diseases) or the individual (e.g., the unborn) on the one hand and individual interests (e.g., the HIV-infected mother) on the other. As George Kent has argued in the above-mentioned breastfeeding case, ‘patients themselves make the final decisions regarding their care, on the basis of informed consent’. And ‘only in exceptional circumstances the state may override this principle’ (SCN News p. 89).

The right to food

The ICESCR Article 11 explicitly states a separate and well-elaborated right to food in Article 11. A similar analysis to that made of the right to health can be made of the separate right to food. This right has been examined in great detail by scholars and activists, including a comprehensive report by Asbjide in his role as a UN Special Rapporteur on the right to food, which has been updated last year (Eide 1987 and 1999). Recently, CESCR adopted its 12^th General Comment on the right to adequate food, which gives an authoritative interpretation of Article 11 ICESCR. I will present a quick overview of the right as a whole, set the conceptual framework, and then discuss those aspects of the right to food that relate most closely to the right to health.

Core Content - CESCR General Comment No. 12 recognizes that States have a ‘core obligation to take the necessary action to mitigate and alleviate hunger as provided for in paragraph 2 of article 11, even in times of natural and other disasters’ (CESCR GC No. 12, paragraph 12). It considers that the core content implies:

The availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture; The accessibility of such food in ways that are sustainable and that do not interfere with the enjoyment of other rights. (Paragraph 8).

The terms ‘dietary needs’ and ‘free from adverse substances’ are elaborately explained in the General Comment (paragraphs 9-10). ‘Dietary needs’ requires, for example, measures to enhance dietary diversity and appropriate consumption and feeding patterns. ‘Free from adverse substances’ requires measures to prevent contamination of foodstuffs.

The core content in this General Comment is somewhat more general in character than the one proposed for the right to health (see above). Contrary to the core content defined for the right to health, this definition seems to refer to the full content of the right and not to a ‘minimum’. This definition leaves undefined what a package of ‘minimum needs’ of food should at least consist of. A UN ACC/SCN document shows that nutrition specialists can make a contribution to the definition of this package of ‘minimum needs’. It enumerates three indicators constituting ‘basic minimum needs’ for adequate food and nutrition:

· Proper nutrition surveillance from birth to five years and no moderate and severe PEM (protein-energy malnutrition).

· School children receive adequate food for nutritional requirements.

· Pregnant women receive adequate and proper food, and delivery of newborn babies with birth weight no less than 3,000 g.

These indicators were used as a way to determine problems and their priorities as a basis for planning intervention activities as well as to monitor and evaluate their results (ACC/SCN, 1996, p. 74). These are the kinds of indicators that could, perhaps, be used to delineate what constitutes a minimum package of nutrition and as such provide inspiration for the definition of the core content of the right to food.

Guiding principles - Within the framework of the above-definition of the core content of the right to food in the General Comment, a number of ‘guiding principles’ are mentioned, similar to the ones that have been formulated for the right to health. For the right to health, States were to safeguard the ‘availability’, the (geographic, financial and cultural) ‘accessibility’ and the ‘quality’ of the health services. According to the General Comment on the right to food, ‘availability’, (cultural or consumer) ‘acceptability’ and (economic and physical) ‘accessibility’ make up the (core) content of the right to food:

· Availability: ‘the possibilities either for feeding oneself directly from productive land or other natural resources, or for well functioning distribution, processing and market systems that can move food from the site of production to where it is needed in accordance with demand’ (paragraph 12)

· Cultural or consumer acceptability: ‘the need also to take into account, as far as possible, perceived non nutrient-based values attached to food and food consumption and informed consumer concerns regarding the nature of accessible food supplies’ (paragraph 11)

· Economic and physical accessibility: ‘Economic accessibility implies that personal or household financial costs associated with the acquisition of food for an adequate diet should be at a level such that the attainment and satisfaction of other basic needs are not threatened or compromised.... Physical accessibility implies that adequate food must be accessible to everyone, including physically vulnerable individuals....’ (paragraph 13).

Respect, protect, fulfil - The tri-partite typology of state obligations, that is, the duty to respect, protect, and fulfil, is as central to the clarification of State obligations resulting from the right to food as it is to the clarification of the right to health. Eide uses the typology in his report on the right to food, including in his “food security matrix” (Eide 1987). In addition, the General Comment on the right to food discusses these obligations (paragraph 15):

Obligations to respect:

· ‘not to take any measures that result in preventing such access’

Obligations to protect:

· ‘measures to ensure that enterprises or individuals do not deprive individuals of their access to food’

Obligations to fulfil:

· ‘to facilitate: to proactively engage in activities intended to strengthen people’s access to and utilization of resources and means to ensure their livelihood, including food security’

· ‘to provide: to provide the right to food directly whenever an individual or group is unable, for reasons beyond their control, to enjoy the right to food by the means at their disposal’

International dimension - There are reasons to assume that the right to food, perhaps more than other economic and social rights, has an international dimension. Although economic and social rights must primarily address human rights in a national context, it can be maintained that States have, on the basis of the right to food, international obligations regarding world food security.

Statistics show that if the total amount of food produced was equally distributed throughout the world, there would be more than enough for all to realize their right to food. There is, however, an enormous difference in food production between the industrialized countries and the Third World (Eide 1987, sections 14-18). The issues of international humanitarian assistance and the importance of fair trade cannot be ignored. ICESCR Article 11 which contains the right to food, mentions international assistance and cooperation explicitly. In addition, ICESCR Article 2(1) refers to international assistance and cooperation more generally.

Such international assistance and cooperation could include measures to ensure that poor countries do not face too many restrictions in the access to the markets of the more wealthy countries. This access should not be hampered by trade embargoes, discriminatory subsidies, investment or trade rules which may jeopardize the vital food supply of a State’s population (Dr and Sen, 1989, p. 273 and FIAN, 1997).

The General Comment on the right to food mentions the following concrete international State obligations (paragraphs 36-37):

· ‘to take steps to respect and protect the enjoyment of the right to food in other countries, to facilitate access to food and to provide the necessary aid when required’

· ‘to ensure that - whenever relevant, due attention is given to the right to food in international agreements and to consider the development of further international agreements to that end’

· ‘to refrain from food embargoes or similar measures which endanger conditions for food production and access to food in other countries’

Possible violations of the rights to food and to health

In order to examine in more detail the overlap between the right to food and the right to health, I will discuss specific governmental duties with regard to the obligations for each right, and give examples of governmental actions that violate international legal obligations that each right entails.

Respect - The obligation to respect the rights to health and food is clearly violated if individuals or groups are excluded from available health and nutritional services. For example, if a Government excludes immigrants from access to basic medical services, this may constitute a violation of the obligation to respect the right to health. The obligation to respect the right to health can also be violated if a State encroaches upon people’s health by, for example, the use or testing of nuclear or chemical weapons or by engaging in other (environmental) activities that are detrimental to people’s health (Toebes, 1999, pp. 325-325). The right to food may in this regard be violated if governments prevent people from growing their crops by, for example, arbitrarily taking away their land. One could also think of governmental activities like the blocking of food transports, or the poisoning of the land by running an oil-producing facility which makes the land unarable (CESR Manual, 1999, p. 35).

Protect - The obligation to protect the right to health is violated if the authorities do not take the necessary legislative and other measures to assure that, if health services are privately provided, such services are provided equally for all vulnerable groups in society. States will need to adopt necessary legislation in order to assure that private providers of health services take into account the principles of accessibility and equality. It is important to note also that if the provision of health services is privately organized, States remain responsible, on the basis of the right to health, for the equal and adequate provision of these services. Making necessary alterations, a similar analysis applies to the right to food. Violations may occur if governments do not take the necessary legislative and other measures in order to ensure the accessibility, availability and acceptability of food. For example, a government may violate the right to food if it allows an oil company to operate in inhabited areas without enforcing environmental protection laws. Or, for example, if it fails to restrain practices that force indigenous peoples to abandon their traditional food-production or gathering practices (CESR Manual 1999, p. 36). Finally, governments violate the rights to health (and possibly also the right to food) if they do not take adequate measures (which might include the adoption of legislation) to prevent the incidence of ‘harmful traditional practices’.

Fulfil - The obligation to fulfil concerns the positive obligation to make sure that health and food is accessible to everyone (to ‘facilitate’ and to ‘provide’). Given its programmatic character, this obligation is difficult to pinpoint. It is difficult to indicate exactly what States are required to do in order to comply with obligations to fulfil. Which health and food services exactly should be made available in order for States to comply with their obligations under the rights to health and food? In this regard it may be of use to make an assessment of statistical data that provide insight into governmental health and food expenditures. How much of their general budget do governments devote to health, to food and to poverty alleviation more generally? The following data were presented in, inter alia, the State reports to the CESCR, and compared to the data from the UNDP and the World Bank:

Table 1. Governmental health expenditures

	ICESCR State Reports:	UNDP (1990)	World Bank (1991)
Algeria	5.5 (1989)	5.4	-
The Netherlands	9.3 (1995)	-	12.4
The Philippines	6.0 (1992)	1.0	4.2
South Korea	2.4 (1990)	2.7	2.0
Tunisia	8.0 (1989)	3.3	6.3
Uruguay	6.8 (1987)	2.5	4.5

Source: ICESCR reports; UNDP, 1995; World Bank 1993

Before an assessment of data in Table 1 is made, caution is required when comparing statistics from various sources. Firstly, almost all of the countries mentioned appear more positive about their health expenditure than the statistics provided by the UNDP and the World Bank would seem to warrant. A possible explanation may be that the years to which these figures relate do not always correspond. This cannot entirely explain, however, the striking differences between some of the figures in the State reports and the UNDP and the World Bank reports. It is possible that some States misrepresent the facts, perhaps in order to suggest that they spend more on health than they actually do. In addition, however, there are large unexplained differences between the statistics provided by the UNDP and the World Bank. Secondly, general health expenditure figures do not indicate how the resources are distributed among the various groups of society. They do not make clear to what extent vulnerable groups, such as women, children, the economically deprived and prisoners, profit from the available resources.

Taking into account the shortcomings of the use of such indicators, expenditure statistics may still help to draw rough conclusions on governmental commitments made regarding health and other socio-economic needs. Some States devote only very little of their budget to health. For example, according to World Bank statistics, South Korea devoted only two percent of its GNP to health in 1991 (Table 1). Such an observation may lead to the prima facie conclusion that South Korea does not comply with its obligations under the right to health. It may also be illustrative to compare the proportion of military expenditure in a country’s total expenditure with expenditures on health, education, and other social facilities (see Table 2).

These statistics show, for example, that in South Korea defense spending in 1991 was more than ten times as high as health expenditure, whereas in the case of the Philippines and Uruguay it was approximately double. Such comparisons may lead to the conclusion that these States fail to comply with the right to health to the ‘maximum of their available resources’ as set forth in ICESCR Article 2 (1). There are no indications as to what an appropriate ratio percentage should be for health and for defense. As part of its “Health for All” strategy, WHO used a five percent figure as a benchmark for monitoring relative amounts of health spending across countries. It is, however, no longer a target. No benchmark percentages exist for defense expenditure because defense is dependent on the strategic position of a country and the extent to which a country is under threat (and needs to arm itself).

Table 2. Governmental health and defense expenditures

	Health	Defense
The Netherlands	12.4	4.8
The Philippines	4.2	10.9
South Korea	2.0	22.2
Tunisia	6.3	5.6
Uruguay	4.5	9.2

Source: World Bank, 1993, pp. 258-259

A second important assessment of possible violations concerns an analysis of distribution of social services among the various population groups. As mentioned above, one should not only look at general social expenditures, but also at how the various expenditures are distributed among the various population groups. This concerns the guiding principles of the geographic, financial and cultural accessibility. A State may violate the right to health if it structurally fails to offer adequate health services to certain segments of society, such as prisoners, illegal immigrants, or women, or people living in remote, rural areas. For example, as mentioned in the 1996 ACC/SCN report “How Nutrition Improves”:

There are many countries where health expenditure, although substantial, is skewed towards curative health care in large hospitals in developed urban areas, rather than improving outreach of good quality primary health care to marginalized communities.

(ACC/SCN 1996, p. 47)

A human rights analysis of statistical data should, therefore, also examine the extent to which various expenditures are distributed among the various population groups.

Enforceability of the rights to health and food through economic, social and cultural rights

Reporting procedures - At present, supervision of economic, social and cultural rights takes place almost entirely by means of reporting procedures. In spite of its non-binding character, the reporting procedure can be considered to have certain judicial traits. At the end of each reporting session, the various treaty monitoring bodies adopt a ‘Concluding Comment’ with respect to the practice in the reporting State. To a certain extent such Concluding Comments take the character of legal decisions. For example, with respect to Kuwait, the CRC Committee adopted the following Concluding Comment:

The Committee is concerned at the high level of malnutrition among children in the State party, mainly due to poor nutrition. The Committee recommends that the State party take all appropriate measures, such as awareness-raising campaigns in and outside schools and counseling, to sensitize adults, especially parents and domestic servants, and children alike to the importance of quality nutrition.

(CRC/C/15/Add.96)

Regarding Mexico, the CESCR remarked:

The Committee urges the State party to continue taking more effective measures to ensure access to basic health-care services for all children and to combat malnutrition, especially among children belonging to indigenous groups living in rural and remote areas.

(E/C.12/1/Add.41)

Complaint procedures - Regarding complaint procedures for the rights to health and food, it can be observed that courts and other (quasi-) judicial bodies are generally reluctant to found their decisions on these rights. At the international level no complaints procedures are yet in force for economic, social and cultural rights, with the exception of the collective complaints procedure of the European Social Charter (Council of Europe). At the national level courts are generally inclined to argue that economic, social and cultural rights are not ‘justiciable’, i.e., not susceptible to judicial review. They argue that economic, social and cultural rights are too vague, and that due to their programmatic content, they would imply policy measures which belong to the discretionary power of the State.

Yet in spite of these obstacles, examples can be mentioned of international as well as national cases in which the decision was founded on the rights to food, health, and other economic, social and cultural rights. Although they are not always successful, such examples provide a valuable basis for future court cases:

· In 1993, the World Health Organization submitted a request for an advisory opinion to the International Court of Justice (ICJ). It wanted the ICJ to address the question whether the use of nuclear weapons is illegal and inter alia, violates the right to health in the WHO Constitution. The ICJ argued that it was not able to give the Advisory Opinion because ‘the question did not arise within the scope of activities of the WHO’ since the WHO Constitution would not provide for ‘the competence to address the legality of nuclear weapons’ (ICJ, general List No. 95). Nevertheless, this case shows that such health issues may be raised before international courts in the future.

· A clear example of a case in which the right to health was considered justiciable is the Yanomani case before the Inter-American Commission on Human Rights (IACHR 1985). Construction of a highway compelled the Yanomani Indians in Brazil to abandon their homes and to seek refuge in other places. Among other rights, the petitioners cited Article XI of the American Declaration of the Rights and Duties of Man (ADHR), the right to the ‘preservation of health and to well-being’. The IACHR concluded that Brazil had, inter alia, violated the right to health in Article XI ADHR and recommended Brazil to ‘take preventive and curative health measures to protect the lives and health of Indians exposed to infectious or contagious diseases’ (Toebes, pp. 185-186). Accordingly, the IACHR explicitly declared that the right to health in the ACHR was violated.

At the national level, economic and social rights can in principle be enforced through national courts. Cases can be based on the rights in the national constitution and on international human rights set forth in treaties to which the country concerned is a party. In some countries the rights to health and food are not constitutionally entrenched. In such countries legislation-based rights to health and food may nevertheless exist. Most national constitutions, however, contain a catalogue of economic and social rights. In Colombia, for example, several cases have been brought before the constitutional court on the basis of the right to health in the Colombian Constitution (Toebes 1999, pp. 225-226):

· In one of these cases the plaintiff, who suffered from AIDS and was in a precarious economic state, challenged the refusal of a hospital to provide him with medical services. He claimed that this refusal violated the right to health in Article 13 of the Colombian Constitution. The Colombian Constitutional Court ruled that due to its limited resources, the State is not required to provide free health care to everyone. It stated that nevertheless, the State is on the basis of Article 13 required to provide special protection when the lack of economic resources ‘prevents a person from decreasing the suffering, discrimination, and social risk involved in being afflicted by a terminal, transmissible, and incurable illness’. It ruled that the hospital was to provide the patient with the necessary services (Revista Mensual 1992, pp. 1008-1009). Clearly, the right to health in the Colombian Constitution was considered to be violated.

Implications for non-State actors

In principle, human rights law consists of legal obligations that fall upon the State. The present paper has focused on the human rights obligations that States have with respect to the rights to food and health. The question arises, whether other actors, such as individuals, the UN and multinational corporations can also have legal obligations with respect to the rights to health and food.

It is clear that individuals have duties under international law. For example, international criminal responsibility for serious violations of international humanitarian law has been clearly established by the Nuremberg and Tokyo Tribunals and recently, by the ad-hoc tribunals for the Former Yugoslavia and Rwanda. And within the case law of the European Court of Human Rights, the so-called third-party applicability of certain civil and political rights has been recognized. Whether individuals have duties with respect to economic, social and cultural rights, however, is a matter that scholars and courts have not yet resolved but which may further evolve in the future. A possible practical implication of this development could be that individuals are held accountable for infringing upon someone’s health or food status, e.g., by destroying someone’s land.

Whether the UN itself can be held accountable for human rights violations is a question that has not been resolved either. For example, given the negative effects of structural adjustment programs on social expenditure, it has been argued that these programs violate (economic and social) human rights (ACC/SCN, 1993, p. 49). Although the World Bank and the IMF are not a party to human rights conventions, it has been maintained that these bodies are, as a UN organization and on the basis of customary international law and general principles of law, at least bound by the most fundamental human rights. In practice this could imply that on the basis of the right to food, the World Bank is to make sure that people are not deprived from their possibilities to grow their crops due to the construction of a dam.

Finally, the question arises whether multinationals can have human rights responsibilities, given their increasing power on a world-wide scale. It can be argued that similar to the World Bank and the IMF, multinationals have limited obligations with respect to some human rights. This could imply that on the basis of the right to food, multinationals should not dump waste in rivers that poisons the crops that are grown alongside this river.

Implications for UN food specialists

UN agencies have an important role to play in poverty alleviation. They may provide development aid and assistance to governments to set up programs for the improvement of people’s health and nutritional status. The UN, as a funding agency, humanitarian aid organization or political actor, has its own set of international obligations in order to assist States to ensure the realization of the human right to food and nutrition. It should always be taken into account, however, that under international human rights law, States have their own responsibility in the field of health, nutrition, and other social areas. So in addition to its own obligation, the UN should seek to hold States accountable for non-compliance with their specific human rights obligations.

As mentioned in the introduction, nutrition experts can analyze specific governmental actions that serve to respect, protect or fulfil the rights to health and food - or at actions that fail to do so. They can seek to address governmental human rights violations in the field of nutrition and health. Furthermore, they can contribute to a clarification of the human right to adequate food.

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