FEATURES

The Substance and Politics of a Human Rights
Approach to food and Nutrition
Policies and Programmes

ACC/SCN SYMPOSIUM, PALAIS DES NATIONS
GENEVA 12-13 APRIL 1999

REMARKS IN THE OPENING CEREMONY OF SCN 26^TH SESSION

RICHARD JOLLY, SCN CHAIRMAN

The SCN is indeed a unique part of the coordinating machinery of the United Nations. Created in 1977 by ECOSOC, we are the only part of the UN system which has had a tripartite structure from its inception - combining the 17 UN agencies with direct responsibilities for nutrition, with 10 donor agencies and with the AGN. And in addition we have other non-governmental representatives - notably the IUNS, IFPRI and some 20 other NGOs. The SCN's tripartite structure is not only unique - it is a practical expression which connects the UN to civil society. It is the vision that our Secretary-General, Mr Kofi Annan, frequently urges the UN agencies to develop. I am proud that senior people within the UN increasingly recognize that the SCN has led the way in this tripartite approach.

Nutrition and human rights serve as sharp reminders that people count...

Let us not underestimate the practical impact of our SCN discussions over the years. It was our Secretariat which:

· in 1985 first recognized the need for a global programme to eliminate iodine deficiency through salt iodization

· in 1986 in Tokyo first engaged the IMF in a discussion of how to embody nutrition in programmes of economic adjustment

· in 1987 first issued a report on the World Nutrition Situation

· in 1989 proposed the idea of a International Conference on Nutrition

· in the early 1990s helped quantify the impact of vitamin A deficiency on young child mortality

· helped to create the network of NGOs and UN agencies supporting nutrition for refugees and displaced persons

· continues to make important contributions through its publications - SCN News and the Nutrition Policy Papers now go out to over 10,000 eager readers.

"One cannot be satisfied with balancing a country's economy if it leads to the unbalancing of its children's lives." - Mahbub ul Haq (1934-1998)

Today SCN turns to Human Rights and Nutrition, a topic which has increasingly concerned the SCN since it established a working group on Nutrition, Ethics and Human Rights five years ago. The Secretary-General has given a strong lead towards a human rights approach - stating unambiguously that the work of the UN should be seen in the context of the Charter and the Declaration of Human Rights and subsequent human rights conventions.

Human rights are ever more important in this world of economic globalization. The structure of global governance adds more rules, regulations, practices and institutions on a daily basis. Most of these new initiatives have been driven by economics, finance, and by the belief that liberalization and open markets lead inexorably to greater economic efficiency and human welfare. Some of this can be valuable, but without a clear emphasis on human rights, global governance will be too narrow and simple.

In this context, human rights set limits to the sway of the market. Nutrition and human rights serve as sharp reminders that people count - and that outcomes must be judged in terms of their impact on people. If the outcome of the free market is that children or women, or anyone else is left malnourished, something is seriously wrong. As the late Mahbub ul Haq used to say, "One cannot be satisfied with balancing a country's economy if it leads to the unbalancing of its children's lives."

Never has any sub-committee of the ACC assembled such a galaxy of senior UN talent for one of its meetings. The SCN thus has a chance to make a contribution to rethinking governance at the highest level - as well as to make a contribution at the most practical level of encouraging coordination and action by agencies and countries.

SYMPOSIUM OVERVIEW AND SYNTHESIS

LAWRENCE HADDAD, DIRECTOR
FOOD CONSUMPTION AND NUTRITION DIVISION
INTERNATIONAL FOOD POLICY RESEARCH INSTITUTE

The 26^th Session of the ACC/SCN was held in the Palais des Nations in Geneva on 12-15 April 1999, hosted by the United Nations High Commissioner for Human Rights. The subject of the symposium held on 12-13 April was The Substance and Politics of a Human Rights Approach to Food and Nutrition Policies and Programmes.

The keynote speech was given by Mary Robinson, High Commissioner for Human Rights; and Gro Harlem Brundtland, Director-General of the World Health Organization, addressed the topic of "Nutrition, Health and Human Rights". Senior officials from UNICEF, FAO, WFP, HCR and WB discussed the UN human rights framework. These UN agencies were challenged to action by Virginia Dandan, Chair of the Committee on Economic, Social and Cultural Rights (CESCR), who explained how monitoring, supervision and dialogue works in the human rights system. Brazilian, South African and Indonesian country studies stimulated discussion regarding the possibilities for application of the human rights approach to food and nutrition. Legal developments were expertly presented by AsbjEide, the world's foremost specialist on the right to food; Michael Windfuhr from FoodFirst Information and Action Network; and Urban Jonsson of UNICEF. The first day closed with the SCN Third Annual Abraham Horwitz Lecture given by Brigit Toebes, Research Co-ordinator at the TMC Asser Institute in The Netherlands.

This overview synthesizes the recurring themes presented and discussed during the symposium. We heard about milestones in the human rights movement (Box 1). It is important to remind ourselves of these milestones, because they indicate how far the human rights movement has advanced in a relatively short period of time; and that food and nutrition as a human right will take time to become embodied in other official documents and conventions.

We heard many new concepts and human rights terminology; and a number of constructs emerged from the presentations (Box 2): claim-holders; duty-bearers; the need for individuals, governments and civil society (including the private sector) to respect, protect and fulfil human rights. I would like to add that claim-holders and duty-bearers both need support. One needs resources to be able to stake a claim and to be able to bear the responsibility of that claim.

It is also important to note that individuals and institutions can simultaneously be duty-bearers and claim-holders.

The Context of Human Rights

In the context of human rights, Urban Jonsson of UNICEF posed the question: "Why is the human rights debate moving forward so rapidly now, especially in the area of food and nutrition?" We discussed market-led, technology-led global forces - sometimes called globalization - and a consensus emerged that these forces make the need for good governance ever more important. Professor Soekirman spoke about Indonesia's recent financial crisis, and how the quality of social safety nets may be affected by government corruption, collusion and nepotism. A strong adherence to human rights creates the context and framework for good governance. Good governance (transparency, participation and accountability) can shape globalization. Globalization is inevitable, but what it looks like is not - there are forces that can shape it, and human rights must be one of those forces.

In the context of the UN agencies, we became familiar with Secretary General Kofi Annan's reform programme and its emphasis on human rights; High Commissioner of Human Rights Mary Robinson's commitment to give equal importance to all human rights; WHO Director-General Gro Harlem Brundtland's optimism that "An explicit human-rights approach to...nutrition means that mechanisms and procedures are gradually put into place...incorporated into national laws, and thereby have a chance of becoming reality for greater numbers of people." We were informed about the new UN Development Assistance Framework (UNDAF) for strengthening inter-agency cooperation at country levels; and the World Bank Director of Health, Nutrition and Population, James Christopher Lovelace, alluded to the growing importance of participatory assessments and community participation in their projects.

Throughout the symposium, our Chairperson, Bertie Ramcharan, pushed us very hard to think about what each of us should do differently in our work as a result of adopting a human rights perspective. He reminded us that "feeling good is not enough", that we would have to produce real and meaningful strategies. I agree with him, but my overall sense from the presentations is that we are already struggling with many issues within a rights framework. HIV and breastfeeding, women's employment and care provisioning, and gender discrimination were all recognized as human rights issues at the symposium.

Indicators and Violations

What can we do to make the human rights approach more real? Our representative from Norway, Arne Oshaug, told us there is no simple answer; there is no universal blue print. One way, however, to make our human rights approach concrete, and to give it substance, is to address the plea from nearly every presenter: develop indicators of human rights that are pertinent to food and nutrition.

A number of indices for civil and political rights at the country level already exist. My IFPRI colleague, Dr Lisa Smith, and I have attempted to work with some of these indicators, and have found a positive correlation between democracy and avoidance of undernutrition, suggesting a plausible relationship between civil and political rights and good nutrition. Even though the right to food is actually embodied within the 1966 Convenant on Economic, Social and Cultural Rights, I urge you not to forget about civil and political rights. The rule of law, freedom of assembly, and freedom of information (all civil and political rights) are, as Nobel laureate Amartya Sen reminds us, aspects of society that are crucial to the avoidance of famine and malnutrition.

Suggestions for food and nutrition related indicators included: indicators extracted from FAO's Food Insecurity and Vulnerability Information Mapping System (FIVIMS); child malnutrition rates; measures of gender discrimination such as differentials in male-female wage rates or life expectancies; or Mary Robinson's characterization of a lack of human rights as "multiple denials" as a useful flag for recognizing an indicator.

Violations might be useful as indicators. Steven Lewis of UNICEF, and Namanga Ngongi of WFP highlighted the difficult decision of 'when to stay and when to go' in the face of gross violations of human rights. Dr Brigit Toebes, our Abraham Horwitz Lecturer, gave us several examples of violations as possible indicators: the denial of the right to grow crops; the denial of health services to women in Afghanistan; no provision of benefits to illegal immigrants; environmental dumping; and a lack of food safety. Dr Dandan, Chairperson of the Committee on Economic, Social and Cultural Rights, also gave us concrete examples from her experience of non-enforcement of covenants and laws on housing in the Philippines.

We first need to develop an explicit conceptual and legislative framework to clarify exactly what constitutes a violation, and then develop mechanisms to obtain information on violations. The role of civil society came out in every presentation, but was particularly strong from our country presentations. Dr Coitinho from Brazil stated that it was only when their human rights and the nutrition movements each became sufficiently mature, that they began to interact in a meaningful way. Mr Thipanyane from the South African Human Rights Commission documented the extensive consultations with the NGO community and civil society community about human rights violations.

Globalization is inevitable, but what it looks like is not - there are forces that can shape it, and human rights must be me of those forces.

The discussion of indicators and violations led participants to talk about the need for some kind of minimum standards of conduct. Michael Windfuhr from FIAN presented the International Code of Conduct prepared as a response to the World Food Summit Plan of Action Objective 7.4. It was suggested that the UN's 20/20 Initiative, linked to government budget allocations for health, education, agriculture and social welfare, could perhaps be another type of indicator leading to information about violations. Professor Michael Toole of Macfarlane Burnet Centre for Medical Research in Australia advised us of the need to check any proposed new codes of conduct in order that they do not conflict with existing rights. He gave the example of new international codes of conduct related to the World Trade Organization.

Regarding violations, I would like to encourage the SCN agencies - and it is easier for me as a representative of a non-SCN agency to say this - to be bold about exposing violations and about documenting violations of rights. I remind you that the SCN and the UN agencies are duty-bearers in this regard in terms of publishing indicators of human rights. Steven Lewis mentioned the "watchdog" function of the UN. I know it is not easy to rank your own member countries in this regard, but I believe this will greatly improve accountability and enforcement.

Values

Urban Jonsson and Steven Lewis both made the point that because human rights have a normative and a legal basis, economic justification for interventions and investments in nutrition is not the main reason, or even a reason, to make certain that children are adequately nourished. If this were the meeting of a Sub-Committee on Education or a Sub-Committee on Housing, however, we would be talking about the rights to education or the rights to housing. Competing obligations and competing rights for scarce resources that have alternative uses is the business of economics, and in my opinion we do need to justify the returns to nutrition in economic terms.

Value Added

Symposium participants kept asking, "What is the value added of the human rights approach?" Above all, we must remember that rights are an end in themselves. Beyond this, I think we are all positive that the approach can improve the effectiveness of nutrition interventions. It will be interesting to see in the next 5-10 years, where the greatest improvement in effectiveness emerges, in which countries, in which sectors, in which institutions, and in which types of programmes and projects.

Both Mrs Robinson and Dr Brundtland mentioned that human rights are invaluable for building coalitions with, and constituencies for, nutrition in other sectors. Drs Ngongi and Toole mentioned that the human rights approach empowers UN agencies to make claims on member countries and helps ensure that the universal definition of human rights is enforced for refugees and internally displaced people. The human rights approach also reminds us of the multi-sector, multilevel nature, causes and consequences of malnutrition; it exposes reckless choices by governments (as Stephen Lewis said), but also by other duty-bearers. Families, individuals, communities, local governments, NGOs often engage in reckless behaviour that has consequences for nutrition.

Can properly documented adherence to human rights become the basis for loans from the World Bank or others? That is a tricky issue because one does not wish to punish people for rights violations of their governments, but it is an issue that this group must address.

Unanswered Questions

Many unanswered questions emerged from this symposium. Of these, perhaps enforcement was the main issue. What are the mechanisms for enforcement? Exposing the violators helps, but given that we may need to guide national governments in how to carry out their obligations, we may first want to focus on the implementation of the law and accountability mechanisms.

Another unanswered question was posed by Dr Toole, who asked whether a human rights approach could help to derail the sequence of events that leads to an emergency, causing agencies to divert resources away from development to much-needed relief? The tenet that human rights provides a framework within which allocation takes place, and that the claim to nutrition rights is not necessarily a claim that is superior to other rights, however, did emerge from the symposium discussion.

Finally, does the business sector represent the toughest challenge of all in terms of enforcement of human rights?

Perhaps for multinationals, yes. Perhaps for small scale entrepreneurs and farmers, no. In the Brazilian case study, Dr Coitinho alluded to the challenge of interacting with the business sector in terms of the need for conflict resolution among the different development actors such as the government, business, and civil society.

...a good way of making the human rights approach better is to use it and not worry about getting it perfect before we do.

What's next?

Make human rights more explicit. At the symposium's opening the comment was made that "The human rights approach to nutrition is not even on the radar screen." We need more examples to use as building blocks to begin developing a language that we all understand, but from the bottom up. AsbjEide showed us a livelihood security/human rights matrix; and earlier in the working group, Urban Jonsson had put up a similar matrix which focussed on breastfeeding. These matrices make the human rights approach to nutrition more real. Dr de Haen from FAO spoke about human rights framework legislation. The World Bank presentation by Mr Lovelace suggested that their country strategy documents would begin to explore the integration of a human rights perspective. Arne Oshaug talked about the importance of building awareness, knowledge and competence within institutions, particularly ministries. Mr Thipanyane from South Africa suggested ministry action plans for human rights. The South African case study made it clear that the development of such a plan would not be easy.

Obviously, it is important to establish national human rights commissions, but as we saw from the South African case study, this is not a straightforward process. Governments control funding to these bodies, either directly or indirectly; and once they have created them, governments might be quite active in frustrating their performance if the commission has the potential to be critical.

Both the Brazilian and South African case studies kept reminding us that taking the first steps are important, but that it is important to keep the effort going in order to advance the human rights approach to food and nutrition policies and programmes - there is no room for complacency.

Dr Dandan emphasized the need to improve the information flow from the UN agencies to the UN CESCR. She urged us to provide our valuable input into the General Comment on the Right to Adequate Food. Furthermore, I encourage SCN member agencies to accept Mary Robinson's offer to assist us with human rights-based training for duty bearers and claim-holders; and to help us establish a common human rights language for food and nutrition. Because sharing information and best practices is critical to moving forward with this approach, I suggest that the Working Group on Nutrition, Ethics and Human Rights focus on producing concrete examples of rights-based programming for the 27^th SCN Session.

Finally, a good way of making the human rights approach better is to use it and not worry about getting it perfect before we do. We need to engage every potential resource, every potential voice, and every potential construct to overcome malnutrition. I think this symposium has demonstrated the potential for the human rights approach to accelerate a decline in malnutrition rates. The challenge for all of us now is to make it real.

Box 1: Milestones for Human Rights
1948	Universal Declaration of Human Rights
1966	International Covenant on Civil and Political Rights
1966	International Covenant on Economic, Social & Cultural Rights
1969	Declaration on Social Progress and Development
1977	The Right to Development as a Human Right
1979	Convention on Elimination of All Forms of Discrimination Against Women
1886	Declaration of the Right to Development
1989	Convention on the Rights of the Child
1992	World Declaration on Nutrition - FAO/WHO International Conference on Nutrition
1993	World Conference on Human Rights
1993	UN ACC/SCN Working Group on Nutrition, Ethics & Human Rights
1996	World Food Summit
1997	UN Secretary-General Reform Programme emphasizes human rights
1997-8	UNHCHR 1st & 2nd Expert Consultations on the Right to Food
1999	UNHCHR 55th Session adopted Resolution on the Right to Food
1999	CESCR adopts General Comment 12 on the Right to Food

Box 2: Human Rights Concepts & Definitions
Claim-holder	has legitimate claim to rights being upheld
Duty-bearer	obligated to uphold rights; usually the State
States' Obligations	to respect, protect and fulfil; the term fulfil incorporates both an obligation to facilitate and an obligation to provide
Civil Society	citizenry; not including government and business
Indivisibility of Rights	all rights are equally important: economic, social, cultural, political and civil

INVITED REMARKS

BERTIE RAMCHARAN

ASSISTANT SECRETARY-GENERAL
DEPUTY HIGH COMMISSIONER FOR HUMAN RIGHTS

The objective of this symposium is to advance our understanding of the substantive and political nature, and opportunities regarding the application of a human rights approach to food and nutrition policies and programmes.

I. Substantive aspects of a human rights approach to food and nutrition policies and programmes

The first thing to note about the right to food and nutrition is that it is grounded in the history of rights going back for centuries and is to be seen expressly or implicitly claimed in the revolutions that led to the great declarations of rights. In the Rights of Man, for example, Tom Paine championed the right to the means for a good life. Locke asserted that one could take from the state of nature that which one needed for one's well-being -provided that one left enough for one's brethren. Economic and social rights are inherent in the French Declaration and its successors. The message is clear: the people have asserted and vindicated a right to food.

The second thing to note is that the Universal Declaration of Human Rights applies the standards of the individual's health and well-being to the right to food. It also assigns to motherhood and childhood the entitlement to special care and assistance. The International Covenant on Economic, Social and Cultural Rights brought in the standard of 'adequate food' and simultaneously asserted the 'fundamental right of everyone to be free from hunger'.

The third thing to note is that the methodology laid down in the Covenant for the implementation of economic, social and cultural rights, including the right to food, encompasses the following:

· Each government should take steps, to the maximum of available resources, for the progressive realization of the rights by all appropriate means, including particularly the adoption of legislation.

· There should be no discrimination in the exercise of the rights.

· Each government should ensure the equal right of men and women in the enjoyment of the rights.

· International action for the achievement of the rights includes such methods as the conclusion of conventions, the adoption of recommendations, the furnishing of technical assistance and the holding of regional meetings and technical meetings for the purpose of consultation and study organised in conjunction with the governments concerned.

The message is clear: the people have asserted and vindicated a right to food.

From these, one can advance the following propositions:

1) Every government should have in place appropriate legislation to ensure freedom from hunger and enjoyment of the right to adequate food. Special provisions should be enacted to ensure there is no discrimination; to ensure equality between men and women; and to ensure enjoyment of the right to food by mothers and children.

2) The governmental agencies responsible for the food policies of every country should be inspired by, and demonstrate, an inherent rights-based approach in their policies.

3) The fundamental nature of the right to be free from hunger and the right to adequate food requires that suitable remedies should be available to those who feel their rights have been violated.

II. The Politics

Sadly, the rights-based approach to food and nutrition is to be found in few countries. Unfortunately, notwithstanding the historic synthesis in the Universal Declaration of Human Rights, and despite the adoption of the International Covenant on Economic, Social and Cultural Rights, some governments continue to take a soft approach to the implementation of economic, social and cultural rights. Regrettably, also, corrupt and dictatorial governments have pillaged or squandered national resources, or diverted them to senseless conflicts or wars, with the result that fundamental rights such as freedom from hunger do not even feature on their radar screens.

III. The Opportunities

This symposium provides a welcome opportunity to lay the foundations for a new beginning at the turn of the century. In the course of the deliberations during the next two days let us try to identify opportunities for practical action nationally, regionally and internationally to pursue and implement a human rights approach to food and nutrition policies and programmes.

THE HUMAN RIGHT TO FOOD AND NUTRITION

KEYNOTE ADDRESS

MARY ROBINSON
UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS

Ladies and gentlemen, I am delighted to welcome so many eminent experts on food and nutrition as well as my colleagues from UN agencies and bodies at this symposium on a human rights approach to food and nutrition and the 26^th session of the ACC Sub-Committee on Nutrition. This meeting is a practical example of the extensive cooperation between your agencies and my office towards the full realization of the human right to food and nutrition.

Let me state my approach. I am committed to giving equal importance to all human rights, be they civil, cultural, economic, political or social rights. While it was reconfirmed by the World Conference on Human Rights in 1993, that "all human rights are universal, indivisible and interdependent and interrelated", economic, social and cultural rights in reality, have in the past received too little attention. This is being rectified and we now have numerous projects on the implementation of human rights on a broad front. These include the work of the Committee on Economic, Social and Cultural Rights (CESCR), and implementation of a Memorandum of Understanding with UNDP and close working relations with ILO, WHO, FAO, UNESCO, the World Bank, other agencies and several rapporteurs of the UN Commission on Human Rights. Later this year, the Commission will be discussing the report of its expert on the right to development. If we are to treat all human rights on an equal footing, more attention needs to be paid to clarifying the minimum core content of economic, social and cultural rights. Meetings such as this one can help greatly.

Few economic rights are violated on such a scale as food and nutrition rights. According to UN estimates, approximately 841 million people in developing countries, mostly women and children, do not have enough food to meet their basic nutritional needs, which infringes on their fundamental human rights.

Figure

Since the adoption of the Universal Declaration of Human Rights in 1948, the right to adequate food has been recognised as an important component of the right to an adequate standard of living. It has also been confirmed in the principal human rights conventions, in particular Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The right to adequate food derives from Article 11 (1), and that to freedom from hunger and malnutrition from Article 11 (2) of the ICESCR. While the first provision is much broader, the latter is a key element of the minimum core content of the right to adequate food. The right to adequate food is indivisibly linked to other human rights and its ultimate objective is to achieve nutritional well-being which, in turn, is dependent on parallel achievements in the fields of health and education. The concept of adequacy is particularly significant in relation to the right to food. It means that the overall supply should cover overall nutritional needs in terms of quantity and quality. The realization of the right to adequate food is inseparable from social justice, requiring the adoption of appropriate economic, environmental and social policies, both at the national and international level, oriented towards the eradication of poverty and the satisfaction of basic needs.

In emergency situations, such as conflicts and disasters, people have the right to receive food aid and States must grant access to impartial humanitarian organizations to provide food aid and other humanitarian assistance. Under no circumstances can States deprive people of their access to food, be it by forced evictions, by destroying food crops or by destroying production resources. It is important to highlight the need to eliminate gender inequality and to acknowledge the specific needs of children and other vulnerable groups. In all circumstances, starvation must be prohibited as a method of warfare.

The right to adequate food and nutrition imposes three types of obligations on States parties to the ICESCR: the obligations (a) to respect, (b) to protect and (c) to fulfil. Failure to comply with any one of these three obligations constitutes a violation of the right to adequate food. The obligation to respect access to adequate food under all circumstances for everyone under their jurisdiction requires States Parties not to take political or other measures that would result in preventing access to adequate food for vulnerable populations. The obligation to protect includes the State's responsibility of ensuring that private entities or individuals, including transnational corporations over which they exercise jurisdiction, do not deprive individuals of their access to adequate food. Whenever an individual or a group is unable to enjoy the right to adequate food, States have the obligation to fulfil that right. This requires that States must identify the vulnerable groups among their populations and provide food and assistance using strategies that ensure the achievement of a long-term capability of people to feed themselves. This obligation also applies to persons who are victims of natural or other disasters. The fulfillment of the right to adequate food requires steps to be taken by all appropriate means, including the adoption of legislative measures, and support by the necessary administrative capacity within the public and private sectors where appropriate. These measures should address all aspects of the food system, including the production, processing, distribution and consumption of food, as well as parallel measures in the fields of health, education, employment and social security.

The realization of the right to food has to happen at the country level. Article 2 of the ICESCR seeks implementation at the national level by all appropriate means, including the adoption of legislative measures. Incorporating the right to food into a national framework legislation would be essential in establishing the ground work for a real accountability of the "duty bearer" - the State - towards the "claim holders". All States have an obligation to cooperate in order to create the conditions under which human rights can be realized world-wide. States not only have obligations in regard to those individuals under their domestic jurisdiction but also, under the United Nations Charter, to cooperate in solving problems of a social and humanitarian nature outside their domestic jurisdiction. In times of emergencies States have at least a moral duty to share among themselves the burdens of food aid and other measures of relief.

I would strongly appeal to the UN agencies to adopt a rights-based approach to their mandates. While cooperation between agencies and the treaty bodies in many instances has developed well during the last few years, in the future greater emphasis should be put on sharing information and the development of joint indicators or benchmarks to measure achievements and shortcomings in the realization of food and nutrition rights. I encourage agencies to establish internal mechanisms to ensure that their own policies or programmes do not impact negatively on the implementation by States of the rights to food and nutrition. The United Nations Development Assistance Framework (UNDAF) constitutes an important tool for strengthening inter-agency cooperation at the country level in order to reach the goals of the global conferences of the 90s including those related to hunger, women, and children; to identify key actions; and to pool resources.

Ladies and gentlemen, in supporting and promoting a rights-based approach to development, UN agencies could help to encourage States to redirect their efforts in a way that would optimize the satisfaction of basic needs in a sustainable way. Agencies could provide not only legal, political and administrative advice to States on how to better meet their obligations regarding the right to food and nutrition, but also help States in monitoring the implementation and any eventual breaches of their obligations related to the right to adequate food. Thank you.

Figure

NUTRITION, HEALTH AND HUMAN RIGHTS

GRO HARLEM BRUNDTLAND
DIRECTOR-GENERAL, WORLD HEALTH ORGANIZATION

Excellencies, colleagues, ladies and gentlemen, one year ago, it was my pleasure to serve as chairperson at the SCN's 25th session symposium on "A Gender Perspective on Nutrition Through the Life Cycle" that was held in Oslo. Today, nearly nine months into my new duties, I am pleased to speak on behalf of the World Health Organization on an issue which cuts across all of WHO's political and technical priorities. Human rights cannot be departmentalized. It has to be a cross-cutting perspective in all we do. It is no coincidence that the Universal Declaration on Human Rights was drafted at the same time as the founding mothers and fathers of WHO drafted our constitution. And the issue of nutrition certainly has both a health and a human rights perspective. What are the primary links between nutrition and health seen from a human rights perspective?

First, nutrition is a key universal factor that affects, as much as it defines, the health of all people. A banal observation, but so obvious a truth that it is regularly overlooked. Well-functioning metabolism based on a regular intake of the proper mix of nutrients, safely ingested, prepares our bodies for the main tasks at hand: growth, development, work, resistance to infection, and the attainment and enjoyment of physical and mental well-being. Nutrition is a key factor. The effects of nutrition not only on growth and physical development, but also on cognitive and social development are well documented. A malnourished child is more vulnerable to disease. Cognitive development will be in peril, especially during the first three years of life. Stunted physical growth is closely linked to reduced mental development. With a distorted intake of nutrients - too little, too much, or unsafe - or with too great a loss of nutrients, for example through diarrhoea or errors of metabolism, we easily fall prey to ill-health and disease. This is an undeniable physiological reality. The proper mix of nutrients under dean and safe conditions must be available to all. We also know just how far from this gold standard we remain. We live in a world where inequity, poverty, underdevelopment, as well as maldistribution and inadequate access to food, health and care still prevail. [Ed. According to WHO's Global Database on Child Growth and Malnutrition (1997) and World Health Assembly Report (1998)] There are tragic consequences:

* half of the more than 10 million deaths every year among children under five are associated with malnutrition

* 170 million children are underweight, 208 million are stunted, and 49 million are wasted

* more than 900 million people suffer from goitre, 16 million are severely retarded, and another 50 million suffer other forms of brain damage, due to a deficiency of iodine

* 3 million children are at increased risk of infection, blindness and death because they are vitamin A-deficient [Ed. At the SCN 26th Session, 12-15 April 1999, the ACC/SCN Working Group on Vitamin A and Iron reported an estimated 140-250 million pre-school children suffer from sub-clinical vitamin A deficiency, thus carrying increased mortality-related risks.]

* anaemia and iron deficiency affect more than 2000 million people the world over

* and some 22 million children, and more than 200 million adults, are obese, and thus at significant risk from a range of serious non-communicable diseases and other threats to health.

Nutrition is a key universal factor that affects, as much as it defines, the health of all people.

But there is more to it. I see a second category of crucial linkages. Because nutrients come from the soil, from forests, from the seas and lakes, nutrition, as a process, is linked to complex interdependent issues like production, the environment, economic structures, social organization, and human roles and behaviour. In short, nutrition is linked to the same forces and factors that determine the degree to which human beings are able to obtain the food and nutrients they require. We must discuss nutrition in the widest possible development terms. A main part of the problem, as you have repeatedly emphasized during the last two SCN symposiums, is that a host of factors relating to the essence of development - poverty being first among these - impinge on this ability, as much as they define it, for individuals and entire societies. We know, and have discussed for years, the countless factors at play, including unemployment, low income, unsuitable shelter, sex-based discrimination, and inadequate knowledge and other barriers to providing the vulnerable with the care they need. Finally, they converge to determine the ultimate - and measurable - individual quality that we call nutritional status. While focusing on the crucial role of nutrition, let us, however, sound a note of caution. We should take care not to cede to the ever-attractive temptation to single out one factor, or even a few factors, of the complex interplay between nutrition and health, and think that they can somehow be confronted and resolved in isolation. The last 50 years of development experience have made abundantly clear just how unrealistic such an expectation is.

It is no coincidence that the idea to establish a world health organization emerged from the same process that, in 1948, identified the universal value of human rights. WHO'S mandate is also universal. Our constitution calls for equity in stating that "the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition". If we were to point to one single factor explaining ill-health in our world today it is poverty. Poverty is the main obstacle to the attainment of health. Poverty leads to ill-health - but it also works the other way - ill-health breeds poverty. Where there is structural poverty and ill-health there will be poor development - poor nutrition, poor health, and poor human rights. The global UN conferences in recent years -Rio, Vienna, Cairo, Copenhagen and Beijing - all point to the same conclusion: not a single country has succeeded in sustaining economic growth and human development without first investing in human development. And no country is likely to sustain progress and the health of its people if they suppress democracy and neglect human rights. One reason for an unfulfilled agenda is precisely to be found in the neglect of basic human rights. The health sector is often left dealing with the results of abuse; the suffering from war and torture; and the mutilations from the killing fields of anti-personnel landmines. Building healthy communities is hampered where freedom of organization is restricted. Diseases find fertile ground where information and education are lacking. Diseases recede when the conditions exist for individuals to acquire knowledge and information; when they fully enjoy their legitimate human rights.

Discrimination on the basis of race, colour, sex, language, religion or any other reason makes the negative impact of poverty on health far worse. Look at gender. Girls and women who are denied access to education, information and real forms of economic, social and political participation are particularly vulnerable. Some political regimes favour vaccination of young boys over young girls. It is totally unacceptable and we need to speak out against such practices. The clearest abuse of human rights sometimes becomes pure violence. Between 20% and 50% of women are victims of physical abuse by their partners at some time in their lives. Violence against women in situations of conflict and against women refugees is part of the same drama. Our evidence base tells a sad story: by 2010 -violence will in itself be a leading global burden of disease into the next century. If we are to take human rights seriously, we have to become familiar with the difference that a human rights perspective brings to our diverse missions, policies and activities in a development context.

...the distinction between charity that flows from the benevolent - when convenient - versus obligations that, by definition, must be met by responsible duty-bearers.

I would like to make two elementary distinctions. The first is the distinction between having basic needs versus having rights that can be legitimately claimed by the rights-holder. The second is the distinction between charity that flows from the benevolent - when convenient - versus obligations that, by definition, must be met by responsible duty-bearers. An explicit human rights approach to health and nutrition means that mechanisms and procedures are gradually put into place to ensure that the values we advocate are underpinned in international human rights law, are subsequently incorporated into national laws, and thereby have a chance of becoming reality for greater numbers of people.

We know it all too well: there are serious imperfections of the current system of human rights implementation. But I would counter pessimism by saying that we have barely begun to use the opportunities that this road of action offers. Here lies the challenge that we face as members and observers in this sub-committee. And such, too, is the nature of our task, in following up WHO'S work along a perspective of human emerging a growing convergence, in the family of nations, in at least the principles - if not always the acts - of governance. A political consensus among governments is at last building, slowly but steadily, in favour of a single overriding notion: development, to be sustainable, must be based on equity. The UN system has been at the forefront of this evolutionary debate from its earliest days, championing human rights for all, and seeking to anchor their protection firmly in international law. During the celebration of the Universal Declaration's fiftieth anniversary last December I focused on a new call for action:

* sustained momentum to win and re-win respect for human rights

* political commitment at the highest level

* mobilization of civil society

* and a progressive force to stand up for the hundreds of millions who are denied the enjoyment of their rights.

The World Health Organization is part of this force, and we will renew our focus on the political and legal links between health and human rights. We need to define more explicitly the links between the technical substance and the vocabulary of health and nutrition, and the way we think and speak about human rights. The professional, institutional and operational bridges between health and nutrition and human rights, though off to a promising start, remain to be further refined. To continue building a solid foundation for action, I believe that all our agencies should continue to be active on two parallel tracks. First, individually, we need to define and refine our human rights objectives and establish explicitly our human rights goals in relation to nutrition and health. Second, collectively, we need to use forums like this one to ensure consensus, compatibility and complementarity with the action of all concerned parties, in an effort to achieve those objectives and goals.

A human rights perspective provides the international community with yet another opportunity to support the development, in countries, of sound public health policies and practices that promote healthy nutrition as a cornerstone of all social and economic development. This approach is consistent with how international intergovernmental organizations like ours function, both as policy advocates and providers of technical support. In line with our mandate, the primary entry point for influencing and shaping national policies is building national capacities to meet diverse nutrition challenges. Governments have the main responsibility for protecting the human rights of their citizens. It is our responsibility to support governments, by providing the tools they need to help them do the job.

Human rights should begin at home. For our agencies, and the technicians and managers working in them, this implies learning more about human rights as they directly affect our many specialized fields. This concerns the norms contained in the best-known instruments but it doesn't stop there. It also includes learning about how the drafters of the UN's own charter and, later, the International Bill of Human Rights, envisaged a functional system for implementing these norms internationally. We must become familiar with the institutions, the mechanisms, and the procedures. They are there for all of us, to support and to make use of, in our common mission to promote and protect human rights, including the right to nutrition and health. We have a responsibility to contribute to a similar learning process among our human rights colleagues. We can do this in a variety of ways. By sharing our insights and applying our indicators we can improve our understanding of how inadequate access to food, combined with inadequate health care, result in malnutrition that is so rampant and so serious that it is one of the worst public health problems we face globally. Therefore this remains a gross violation of the human right to health!

An explicit human rights approach to health and nutrition means that mechanisms and procedures are gradually put into place to ensure that the values we advocate...have a chance of becoming reality for greater numbers of people.

Let me end by focusing briefly on this Sub-committee's relationship with its parent body, the ACC. The example you set here has important implications, through the ACC, for how the entire UN system addresses the issue of human rights. We should all be able to ensure that a human rights culture permeates each of our agencies. I am not suggesting that we begin each day by reciting the Universal Declaration of Human Rights! What we can do is create working environments where staff will be continually challenged to explore two interdependent avenues: making effective use of human rights norms and their implementation systems to accomplish daily tasks; [and] contributing to the still wider and more effective application of these norms through the daily tasks they accomplish. This is the essence of the challenge for the UN system and what it implies when we talk of mainstreaming human rights. We should be sure to do this in concert with our Member countries. We must strive to benefit fully from a process that simultaneously engages both international and national perspectives and stimulates new opportunities for growth and learning. Governmental accountability for human rights standards requires an understanding of minimum standards of nutrition, of the body of operational laws and policies, and of monitoring mechanisms that help establish the evidence of the contribution of health and, in today's context, of nutrition to human rights. Our advocacy for human rights contributes to the global public good that the UN system is here to provide. Doing it together will provide new energy to an important human cause. Thank you.

MALNUTRITION AS A HUMAN RIGHTS VIOLATION:
IMPLICATIONS FOR UNITED NATIONS-SUPPORTED
PROGRAMMES

STEPHEN LEWIS
DEPUTY EXECUTIVE DIRECTOR, UNICEF

We are here to consider nutrition and malnutrition as the fulfillment and violation respectively of human rights. I would like to suggest to you that understanding malnutrition as a violation of human rights has profound implications for the way we in the United Nations and our government partners do business. It should change the way we view the adults, mostly women, and children who are sufferers or potential sufferers of malnutrition and should, in fact, improve the effectiveness and sustainability of what we do. I would also like to link the States obligations to respect, protect and fulfil the right to food and nutrition to the evolving concept of good governance at the global, national and local levels.

We know that the record of addressing the problem of malnutrition among children and women is a mixed one. In the last ten years, we have learned a great deal about the many ways in which malnutrition among very young children exacts a terrible toll throughout life, even in later adulthood. We have learned, and continue to learn, that good nutrition before and during pregnancy has remarkable benefits for the mother, including reducing her risk of death associated with pregnancy and childbirth, but also in ensuring a good start in life for her child. We know that deficiencies of certain vitamins and minerals have consequences for women and children that range from increased risk of death to mental impairment and other developmental problems, blindness and other disabilities, and poor performance at school and work. We know, moreover, that most of these deficiencies can be prevented or treated relatively easily. And yet child malnutrition remains widespread. Over half the children in South Asia, and a third of those who live in Africa south of the Sahara, and millions more around the world are malnourished, and because of that some six million young children a year die when they would be unlikely to do so if they were well nourished.

Over half the children in South Asia, and a third of those who live in Africa south of the Sahara, and millions more around the world are malnourished, and because of that some six million young children a year die when they would be unlikely to do so if they were well-nourished.

A good part of this has to do with a inadequate resources. But I ask you to compare what we are spending on the war in the Balkans with the other human imperatives for which we never have the money. It is ever thus, whether it is Kosovo, however merited, or bailing out the Asian banks, or the Gulf War. It is ever thus. We never have the money. As I journeyed here from New York I was reading an article in the Herald Tribune [11 April 99] by Joseph Stiglitz, Chief Economist and Senior Vice President of the World Bank. In his article, "Bleak growth prospects for the developing world," he comments on a recently released World Bank report dealing with investment practices of a short term kind:

The Bank's report highlights another disturbing trend. Development aid is stagnating at its lowest level in more than 50 years; at 33 billion dollars worldwide, aid from wealthy donors has fallen to less than one quarter of one per cent of the combined gross national product of industrial countries. A 38% decline since the beginning of the decade. Yet improved policies in many low-income countries mean that aid is more effective than ever in reducing poverty. It is a cruel irony that just as the sudden drawing up of volatile commercial loans makes aid more urgent than ever, it is shrinking.

The same Herald Tribune had an article called, "Who will pick up the tab for Indonesia's bad debts?" and it says:

Officially the Bank rescue bill stands at around 450 trillion rupiahs, 50 billion dollars in bonds which have to be issued. But unofficial estimates from specialists now go as high as 700 trillion rupiahs, or 60% of gross domestic product which works out to 70 or 75 billion dollars.

People have raised the question of government priorities, political will and international support. Governments are palpably reckless in their choice of priorities. And I must say, with all the respect in the world, that the phenomena of globalization and the policies of the World Trade Organization do not seem to be strongly facilitating the advent of the right to food or nutrition.

We know that breastfeeding is an essential element of nutrition for young children in the vast majority of situations. We also know that breastfeeding often remains at risk, subject to the behavior of large corporations who would undermine it for profit. The international community and in principle, these corporations themselves have agreed to a minimum legal standard to regulate the marketing of infant formula. Yet some of these very corporations seek to undermine the development and enforcement of legislation reflecting the minimum standards of the International Code of Marketing of Breastmilk Substitutes, and go to great lengths, including tying up the judicial systems of developing countries, to escape compliance.

We know that good nutrition depends on access to health services and sanitation, on the status and situation of women enabling them to make decisions in favor of the care of their young children, and on food security in the household. We know that these elements in turn are dependent on a wide range of social and economic factors, including poverty, discrimination, and investment by the State in basic social services. In spite of the complexity of the malnutrition problem, we also know from well-documented experience, that great strides can be made in improving child nutrition when actions taken are derived from an analysis of the problem by those most at-risk of being affected by the problem. Only when those living in poverty are understood to be the most effective analysts of their own problems and agents of their own solutions, is it possible to formulate effective and sustainable interventions to reduce malnutrition, even when macro-economic factors continue to work against the impoverished of this earth. And yet these experiences of participatory problem assessment and analysis leading to actions to reduce malnutrition are relatively few, and carried-out on an inadequate scale.

With all that we know and have yet to apply sufficiently, why bring human rights into the picture? Will it help us in this struggle to understand malnutrition as a violation of human rights?

Before suggesting some answers to these questions, I want to remind you that good nutrition is a right guaranteed for children in the Convention on the Rights of the Child (CRC). This international agreement combines all rights equally: economic, social, cultural, political and civil rights. The determinants of good nutrition - food, care and health - are all covered in Article 24's provision guaranteeing children the right to "the highest attainable standard of health". I would remind you further that the CRC is nearly universally ratified, and that this ratification has been the most rapid in the history of international human rights instruments. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), while not ratified by as many countries as the CRC, contains many similar provisions with respect to the health and nutrition of women. In these two instruments of human rights, we have powerful tools to recast our understanding of our own and our government partners' obligations, the programme and policy strategies supported by our agencies, and our views about those who would impede the realization of the right of children and women to good nutrition. UNICEF has taken an explicit political decision to make the realization of the rights embodied in these two conventions the heart of our mandate. What this means for UNICEF and for all of our agencies with respect to malnutrition can be summarized in the following points.

This duty of the State is more robust than the argument...that there is an economic justification for addressing malnutrition....the duty to fulfil the right of children and women to good nutrition does not depend on an economic justification, and does not disappear just because it can be shown that tackling some other problem is more cost-effective in terms of money...or any other measure.

Recasting obligations of States and other partners:

Ratification of the CRC means our government partners acknowledge their obligation to become combatants against child malnutrition. This obligation is a legal commitment that stands firm, no matter what international conferences they have attended or what other development planning they have done. The fulfillment of obligations under human rights conventions, such as the CRC, thus create the context for good governance. Part of the duty of good governance is ensuring that others, especially the primary care-givers of children, are enabled to fulfil their part of this obligation to children. This duty of the State is more robust than the argument, which is also compelling in its way, that there is an economic justification for addressing malnutrition. We know this is so, but the duty to fulfil the right of children and women to good nutrition does not depend on an economic justification, and does not disappear just because it can be shown that tackling some other problem is more cost-effective in terms of money, DALYs or any other measure.

Recasting our understanding of the nutrition problem:

With a rights-based approach, it is not possible to see malnutrition as a purely technical problem, as it continues so often to be seen. It must, rather, be understood as determined by many sectors, by all levels of society, and again, by such complex factors as the status of women and the distribution of poverty in society. With both the CRC and CEDAW in the forefront of our nutrition thinking, moreover, the integral link between children's and women's rights is clear. In attacking malnutrition it becomes clear that we cannot hope to address violations of rights against children without addressing those against women.

You and I know that participation as a development strategy, like the right to food, is frequently espoused but rarely applied....for truly participatory approaches... are the only ones likely to succeed in the long run.

Recasting programme strategies: You and I know that participation as a development strategy, like the right to food, is frequently espoused but rarely applied. Rights-based programming and policy development carries a commitment to real participation of those affected by the problem in all of our work against malnutrition. It recognizes that the people at-risk of malnutrition have the right to determine the course of their actions and the partners they will take in their struggle, and not we who presume to have the right to dictate those matters to them. I have already alluded to the importance of participatory problem assessment and analysis at local levels for finding appropriate solutions to the malnutrition problem. Too many of our partners in government at all levels and in civil society organizations remain unconvinced of this approach. Rights-based programming gives us the obligation to continue to fight for truly participatory approaches for they are the only ones likely to succeed in the long run.

Recasting our measures of development progress: A rights-based understanding solidifies the position of malnutrition, particularly child malnutrition, as an indicator of development progress as well as of human rights violations. Child malnutrition exemplifies the coming together of human development and human rights thinking. The standard of a well-nourished child is a good example of the normative standards that are increasingly being adopted to development theory and practice. When we talk about the right to development, we talk about the rights of the child, which includes as a matter of international law, good nutritional status. So the theory and practice of development is the theory and practice of human rights. The two are inseparable.

Recasting the violators: Let us note clearly that a rights approach to malnutrition means a different understanding of those who would impede the fulfillment of the right of children and women to good nutrition. Those who, for instance, make claims about infant formula that intentionally undermine women's confidence in breastfeeding are not to be regarded as clever entrepreneurs just doing their job, but as human rights violators of the worst kind. Those who have no confidence that poor people's assessment and analysis of their own problems is a worthwhile basis for formulating actions to combat malnutrition, violate human rights.

Reaffirming the role of the United Nations: For the United Nations agencies, our role is clear. The heart of the United Nations mandate is to act as a watch-dog to signal to the world - and, importantly, to those most affected by rights violations - the scope and magnitude of human rights violations, including those horrific ones that manifest themselves in the form of malnutrition. Some civil society organizations also do this, of course, but the role exercised by the United Nations as a body of States Parties is unique and essential.

Conclusions

Viewing nutrition from a human rights perspective will not be new to those who have followed the work of ACC/SCN over the years. In particular their Nutrition Policy Discussion Paper No. 15 (1996), "How Nutrition Improves", included case studies from Tanzania, Brazil, India, Indonesia, Thailand and Zimbabwe which highlighted some of the same factors echoed at this symposium. They concluded that the status of women; the understanding of nutrition as food, health and care; and truly participatory problem assessment and analysis were keys to nutrition improvement in these diverse settings.

It is at once encouraging that we are beginning to understand malnutrition in the light of human rights, and very disheartening to think that after all these years, after all the conferences, speeches and programmes, the malnutrition problem still looms so large before us. I am convinced, though, that an important part of the lack of success associated with some of our efforts is very much a result of too circumscribed an understanding of the problem, leading to programme approaches that have been too timid and too narrow.

In UNICEF:

· We are going to continue our efforts to promote participatory and intersectoral approaches to resolving malnutrition for women and children.

· We are already taking measures to strengthen the capacity of our offices to understand, articulate and analyze more effectively the economic, political and social context in which they work, which will be of direct use in their understanding of appropriate strategies the fight against malnutrition.

· We will continue to improve the skills of our field staff in working with communities to help accelerate their own processes of problem assessment and analysis and formulation of effective actions to combat malnutrition. This is an essential part of our continuing work to improve the understanding of rights-based programming among our staff.

· We will continue our support in addressing vitamin and mineral deficiencies of importance to women and children.

· In spite of the continuing difficulties and the new challenges posed by HIV/AIDS we will continue to be a strong voice in favor of support, protection and promotion of breastfeeding.

· We will work with a range of partners to ensure that child malnutrition is used in the monitoring of development progress and of human rights violations. It figures centrally in the multiple-indicator surveys that our offices are now preparing as part of our reporting on progress toward the goals of the World Summit for Children. Countries in two UNICEF regions in Asia and one in Africa have also developed, or are developing, extensive regional data bases using district-level data for programme planning and advocacy purposes, including a wide range of nutrition indicators.

· Finally, we will advocate for a concept of good governance that is based on the obligation of all governments to respect, protect and fulfil the rights of children and women.

I hope that work around priorities such as these will be the work of all the UN agencies represented here in a new shared understanding of the problem of malnutrition. I congratulate the ACC/SCN for its persistence in what I know to be the difficult job of bringing our disparate agencies together around the cause of addressing malnutrition, a gross and unmerciful violation of the rights of children and women.

WILL RIGHTS CURE MALNUTRITION?
REFLECTIONS ON HUMAN RIGHTS, NUTRITION AND
DEVELOPMENT

JAMES CHRISTOPHER LOVELACE
DIRECTOR, HEALTH, NUTRITION AND POPULATION NETWORK
THE WORLD BANK

In her foreword to the recent World Bank publication, Development and Human Rights: The Role of the World Bank, Mary Robinson, UN High Commissioner for Human Rights, suggests that the World Bank's recognition of its specific role regarding human rights was a 'defining moment' for the international promotion and protection of human rights. While we at the Bank appreciate the kudos, it is perhaps rather too generous or at least premature. True, the world, and the World Bank, now accept that sustainable development is impossible without human rights. That is an important global shift in perception. But that realization, in itself, does not imply that the World Bank's lending and non-lending decisions will, in the final analysis, always be governed by human rights considerations; or even that the World Bank ought to play an active role in advocating for human rights within the countries where it operates. In fact, the Bank is only now beginning to explore the implications of the current human rights discourse for its decision making and action.

Current World Bank Activities in Nutrition

Over the past 25 years, the World Bank has invested close to US$2 billion in nutrition activities in over 70 countries. The Bank currently supports some 97 ongoing self-standing nutrition projects and nutrition components of health, agriculture, education, early childhood development or social protection in 45 countries. In addition, a much larger number of Bank-supported income generation, health, education, and agriculture projects address the underlying causes of malnutrition. Direct nutrition activities include community-based growth monitoring and promotion, targeted supplementary feeding, micronutrient supplementation, food fortification, as well as income-generation and micro-credit activities. Communication for behaviour change forms an integral part of most of the successful projects. Several of these projects utilize innovative contracting arrangements for service delivery through NGOs, local communities and entrepreneurs. Progress is also being made on implementing projects with explicit food security targets.

Food safety is also receiving increasing attention. A strategy on Food Safety Investment, which will focus on quality and safety issues related to both local and export food marketing, is in preparation. And a task force on biotechnology, which is inter alia considering the effects and implications of technological developments for small holder farmers and poor consumers, has also been established. While the Bank can thus claim to be making a modest contribution to the fight against malnutrition, there is no room for complacency. The global nutrition problem remains large, and progress is slow. In fact, nutrition lags behind other social indicators, and is increasingly becoming the limiting factor in achieving further gains in child mortality and morbidity - if not on further economic growth and social development.

During the last few years, in the context of rapidly changing external conditions and organizational changes in the Bank, questions have emerged regarding the Bank's long-term commitment to addressing malnutrition, about the quality of its nutrition project preparation and implementation, and the effectiveness of its actions in achieving sustained improvements in the nutrition conditions of poor people. These are not questions for the Bank only - they relate to broader questions we need to ask about the international effort to combat malnutrition. Why is the record so sobering? Is it that more impact simply requires more input? Why then are we not doing more? Where are the leverage points that will make the big difference?

To begin addressing these questions, and to reformulate and revitalize the Bank's approach to addressing malnutrition, the Bank has embarked on a review of its experience with regard to nutrition. We are happy to have been joined in this initiative by UNICEF. Together, we will be exploring how our agencies have contributed to the development and application of key ideas and approaches to malnutrition reduction, internationally and at country level. Building our understanding of the policy development and implementation process, we should come to a better understanding of how the control of malnutrition can be accelerated.

True...the World Bank now accept[s] that sustainable development is impossible without human rights. That is an important global shift in perception. But that realization...does not imply that the...Bank's lending...decisions will...always be governed by human rights considerations...

Focus on Country Action

Our nutrition renewal activities are focused on country-level practice. We do not think this is the time for more global conferences or global statements of intent. We will focus our energy on supporting change at the country and community level. Therefore we want to work with other agencies on country programs - programs that have the support and commitment of governments and people, and are an integral part of the development plans of those countries. This means that we will pay particular attention to ensuring that nutrition receives attention in the preparation of the Bank's Country Assistance Strategies, the central vehicle through which the Bank plans its support to countries. It also means that we will give more attention to building institutional capacity appropriate to the specific conditions in countries and regions, to ensure that nutritional programs are more sustainable. In this regard we are working with partner agencies, including UNU and IUNS, and actors and agencies in the African region to spearhead a capacity building initiative for nutrition leadership in Africa.

The World Bank Mandate

The Bank's Articles of Agreement clearly state that, in all its decisions, "only economic considerations shall be relevant" (World Bank 1966). You will appreciate that this focus on the economic rationale of investments has afforded the bank an important measure of protection against pressures to commit scarce funds for ill-conceived projects with short-term political or ideological purposes. And this economic calculus has introduced an analytical rigor and an insistence on credit-worthiness and sustainability. It should be admitted, however, that these criteria have, at times, been applied in too narrow a fashion, sometimes with unforeseen negative consequences. The question thus arises whether the limited mandate of the World Bank would preclude it from adequately confronting the issue of human rights. We do not think so. To be sure, some aspects of human rights clearly fall outside its mandate. But we are convinced that the Bank's economic and social approach to development and poverty reduction in countries very much advances, in very practical terms, a comprehensive, interconnected vision of human rights. In fact, we believe that advancing the human rights agenda is pretty much impossible without sustained attention to development. It is easy to say that the right to development is all-encompassing, demanding the realization of civil and political as well as social, economic and cultural rights. But the very indivisibility of a comprehensive human rights framework still leaves us with the practical need to make choices.

Realizing Human Rights

The Bank's commitment to human development, and its insistence on the dignity of all people, reflect an ethical stance on the part of its past founders and its present governors; a stance that continues to inform all its decisions and activities. Thus, for the World Bank, the measure of this stance does not lie in its pronouncements on ethical, political or rights issues, but in how its resources have been applied, and the difference it has made to the lives of people. Its lending over the past 50 years for education, health care, nutrition, sanitation, housing, environmental protection and agriculture have helped turn rights into reality for millions. Since its first $2 million loan to family planning activities in Jamaica in 1970, the Bank's lending portfolio in health, nutrition and population (HNP), for example, has grown rapidly and it is now the single largest external financier in low and middle-income countries, with a cumulative portfolio value of over US$31.5 billion in 1996 dollars. It has funded HNP activities in some 225 projects in 89 countries over this period, thus contributing directly to the fulfillment of the economic and social rights of millions of people (World Bank 1997).

As the Bank's approach to development financing evolved over the years (often in response to constructive criticism and effective lobbying from other development partners), it now uses a range of assessment tools to gauge the potential social, environmental and economic impact of proposed projects. While not couched in human rights terms, these mechanisms provide some means to ensure that social and economic rights are respected and protected. The recognition that economic measures could have negative consequences, particularly for the poor, has resulted in actions to improve the agency's capacity to assess adverse impacts more adequately, and has resulted in more attention being given to safety net measures to cushion economic shocks. It has recently been proposed that similar tools also be developed to assess the human rights impact of projects, and this is presently under consideration (World Bank 1999).

That having been said, we do recognize that this is a more limited approach to human rights than the rights-based programming approaches of some NGOs and other United Nations agencies, such as UNICEF and ILO. We see in this a useful complementarity between UN agencies and International Financial Institutions (IFIs), other donors and NGOs, based on a meaningful division of labor. In this scheme of things, advocacy aimed at respect for rights, and capacity-building aimed at rights protection would remain the principal concern of the relevant UN agencies, some bilateral donors, and NGOs, while providing resources for scaling up project service delivery aimed at rights fulfillment would be the domain where the IFIs (and the larger bilateral donors) have a comparative advantage.

What are the prospects for the World Bank working within the framework of the proposed UN human rights approach? I would think they are good - provided that such a framework is articulated at country level, and shaped by all the development and rights stakeholders in an essentially transparent and participatory political process, with the client government in the driver's seat.

The Comprehensive Development Framework (CDF)

The CDF, recently proposed by World Bank President Wolfensohn, and currently being piloted in a number of countries, reflects the World Bank's understanding of the two-way relationship between development and human rights. The CDF promotes a strong public sector that acts in a transparent manner and is free of corruption. It also stresses a governance system that allows for inclusive participatory decision-making as an essential prerequisite for achieving social and human development goals, which are derived from a nation's human rights architecture (see http://www.worldbank.org/cdf/).

...questions have emerged regarding the Bank's long-term commitment to addressing malnutrition... and the effectiveness... in achieving sustained improvement....These...relate to broader questions ...about the international effort to combat malnutrition.... Where are the leverage points that will make the big difference?

Given its emphasis on participatory development planning, long-term visioning, local ownership, and partnership with other donor agencies, the implementation of the CDF brings the Bank right into the arena of the rights discourse. It means that the Bank, in its interaction with client countries and other development partners, is bound to participate in discussions of human rights. Of course it recognizes the essentially political nature of decision making with regard to development priorities and approaches. But the Bank's specific role and contribution will continue to be to bring to the debate a measure of economic rigor required to systematically weigh alternative means towards fulfilling the state's obligations regarding economic and social rights. Thus, there is simply no reason why the Bank can not be an active participant in country level development planning and action driven by a rights-based approach. This will come to be increasingly reflected in the Bank's Country Assistance Strategy papers.

In summary, an internationally created human rights framework should be interpreted and applied by all country level stakeholders. Afterwards, the major principles underlying human rights (for example, those of non-discrimination, or of participation, or of the best interest of children) must exert an abiding influence on the design of the operational details of projects. It is in this sense that the Bank would help countries to meet the "moral minima" - not so much by being proactive in its rhetoric about rights, but by being pragmatically and programmatically responsive. The Bank's emphasis will thus remain on the effective implementation of sound development strategies to achieve concrete improvements in the lives of poor people.

Conclusion

In conclusion, the World Bank recognizes that the human rights approach to nutrition is an important new narrative of the international development discourse. The Bank is only beginning to explore the implications of the human rights framework for its work. Support for governance reform and for equitable economic growth are but two aspects of the Bank's comprehensive approach which will strengthen the human rights culture. The Bank will continue to engage in the debate on the right to nutrition, to the extent that we can help to turn the rhetoric into reality. Our intention is to remain focused on action to combat malnutrition. We want to work with countries and partner agencies to significantly increase the global resources allocated to nutrition. And we want you, our partners, to hold us accountable for a measurable improvement in nutrition where it matters - in the households and communities of those persons living in poverty worldwide.

References

World Bank (1966) Articles of agreement of the International Bank for Reconstruction and Development: as amended effective December 17, 1965. The World Bank Group (Eds.) Washington, D.C.

World Bank (1994) Enriching Lives: Overcoming Vitamin and Mineral Malnutrition in Developing Countries The World Bank Group (Eds.) Washington, DC.

World Bank (1997) HNP Sector Strategy Paper The Human Development Network The World Bank Group (Eds.), Washington, DC.

World Bank (1999) World Bank Kiosk archives.

SUMMARY OF STATEMENT

HARTWIG DE HAEN

ASSISTANT DIRECTOR-GENERAL, ECONOMIC AND SOCIAL DEPARTMENT
FOOD AND AGRICULTURE ORGANIZATION

The rights related to food are of special concern and have great importance in FAO, whose basic purpose is, as is stated in our Constitution, to ensure humanity's freedom from hunger. The World Food Summit Plan of Action (WFS) has provided us with a blueprint for creating conditions in which everyone's right to food is fully realized. The right to food implies that people should be able to provide for their own food and nutrition needs in full dignity and in a sustainable manner. In the short term, however, 841 million food insecure people living in the developing world can only enjoy the right to food through direct food assistance at local, national and international levels. Therefore, work must be done at all of these levels if the goals of the WFS are to be achieved. FAO, as a technical agency with the right to food at the heart of its mandate, stresses its role in assisting States to reach their objectives in a practical way. There are several specific activities of FAO which aim to do this and are of special relevance to the right to food.

FAO Special Programme for Food Security (SPFS)

The Special Programme for Food Security (SPFS), initiated in 1994, was created to assist developing countries to improve their national food security through rapid increases in productivity and food production; reducing year-to-year variability in production; and through improving people's access to adequate nutritious food on an economically and environmentally sustainable basis. The SPFS was founded on the concepts of national ownership, a participatory approach, environmental awareness and sensitivity, and regard for the role of women, all of which are principles consistent with a rights approach. The SPFS is operational in nearly 40 countries, covering practically all regions. In over 30 low income food-deficit countries, the SPFS is currently in various stages of formulation.

Food Insecurity and Vulnerability Information Mapping Systems (FIVIMS)

Accurate and timely information on the incidence, nature and causes of chronic food insecurity and vulnerability is crucial for national policy makers in their efforts to formulated and implement policies and programmes to reach WFS goals. Information about food insecure and vulnerable people is lacking in many countries. An important objective of the FIVIMS initiative is to remedy this gap. FIVIMS was introduced by the WFS Plan of Action. The indicators will be of direct use for those involved in targeting policies and support measures for food-insecure people, and for those involved in monitoring success in reducing the number of hungry and malnourished at both national and international levels. For this purpose, FIVIMS can also generate quantitative as well as qualitative indicators of performance in respecting, protecting and fulfilling the right to food. It can thus serve as an information bridge between different bodies, such as FAO's Committee on World Food Security and the UN CESCR. Information at national and global levels about who is food insecure and why, should be seen as a tool for action, rather than an end in itself. This action needs to be taken primarily at national and local levels, but international organizations should be ready to lend their assistance in a coordinated way.

Policy Advice

FAO has the opportunity to integrate the right to food in its policy advice to States, advocate for the right to food, and provide information thereon, in accordance with its Constitution and the Charter of the United Nations. This will include the difficult, but most important task of drawing the attention of governments to the need for primacy to agriculture and rural development in development and investment policies as a precondition for sustainable progress in reducing hunger and malnutrition.

Emergency Situations

Normative work on emergency situations, from preparedness to rehabilitation, is an important area. This year marks the 50^th Anniversary of the Geneva Conventions. The right to food in emergency situations, including in armed conflict, needs to be brought into the limelight in connection with the commemoration of this anniversary. Conflict brings with it many serious violations of the right to food, for instance food blockades and the deliberate starvation of civilians. These should be addressed by reporting and advocacy. Humanitarian access should be seen in the context of the victims' right to food and other basic necessities, and insisted upon as a legal obligation of States, in cases where States are unable or unwilling to provide such assistance itself. A rights approach to food aid in emergencies inherently devises the delivery in full respect for human dignity, taking cultural aspects into account; avoids creation of dependency; and works towards return to self-reliance. With the cooperation of other UN bodies, in particular WFP, UNHCR and UNICEF, as well as with the International Committee of the Red Cross, FAO could examine these questions from a normative point of view and produce practical tools for those involved in emergencies.

Accurate and timely information on the... causes of chronic food insecurity... is crucial for national policymakers...

Legislation

In FAO's blue book, The Right to Food in Theory and Practice (see SCN News No. 17), a map shows which countries have incorporated the right to food in their constitutions. None of these 20+ countries, however, have enacted specific legislation to give effect to the constitutional provisions. As the main responsibility for implementing the right to food lies with States, FAO believes that a practical measure for so doing could include the adoption of framework legislation. This should contain certain principles regarding the right to food, and set the framework for a review of the relevant sectoral legislation. The legislation should clarify the rights, and clarify the corresponding obligations to respect, protect and fulfil the right. This process should be guided by the express principles of accountability, predictability, transparency, non-discrimination, participation and empowerment and set up the institutional framework of action in the context of each country. Such national legislation should also contain specific targets which can be monitored, and timeframes that the State sets for itself in line with global targets set by not only the WFS [Plan of Action], but by other international conferences of this decade. International organizations should indeed lend their support to more such initiatives. FAO is in the preliminary stages of helping to organize workshops on the right to food in the national context, bringing together the relevant government actors and civil society. This would be done in cooperation with other agencies and bilateral donors. There have already been discussions held at the working levels between WFP, IFAD and FAO on how they might collaborate better on issues related to the right to food, both for long term goals and for more short term interventions, especially for the establishment of food safety nets to help states ensure, as a minimum, freedom from hunger.

Conclusion

FAO attaches great importance to the right to food. FAO is ready to cooperate closely with sister agencies and other partners in efforts to clarify what is really meant by development strategies that are based on the right to food and that can ensure that this right will be realized for all human beings with the shortest delay possible.

THE PRACTICAL CHALLENGES OF OVERCOMING HUNGER

A NAMANGA NGONGI
DEPUTY EXECUTIVE DIRECTOR, WORLD FOOD PROGRAMME

Twelve WFP staff members lost their lives in 1998... 45 over the last few years while providing humanitarian assistance.

Mass hunger in a world of plenty is an indefensible paradox. There is enough food in the world today to feed every man, woman and child to ensure healthy and productive lives. And yet, according to FAO, some 841 million people continue to suffer from food insecurity. Some 50 million other people suffer from acute hunger as a consequence of natural disasters or - increasingly - from war, civil unrest and economic crises.

The SCN has made valuable contributions in furthering the understanding of nutrition and malnutrition. It has been at the forefront in developing international agreement on nutrition standards. It has helped to develop nutrition indicators for use in humanitarian interventions. It has consistently emphasized that good nutrition means that micronutrient needs are met along with energy needs. The SCN has provided much useful support to the humanitarian agencies and the WFP has benefited greatly from this support. As the food aid agency of the United Nations, WFP grapples with the practical dimensions of hunger and malnutrition every day. This meeting is considering important issues, but ones that are all too often discussed in abstract terms. I wish to bring to this meeting the perspective of a practical agency, and discuss some of the problems and challenges that WFP faces in providing food to hungry people in both humanitarian and development situations, people who are not in a position to exercise their right to food.

Challenges Faced in Humanitarian Situations

A major challenge facing WFP in many conflict situations is that hunger is a weapon of war. Civilians are subjected to starvation as part of armed conflict. War-affected populations are denied access to food along with other types of humanitarian assistance. At the same time, the value of relief goods often attracts looting or attacks on relief convoys, warehouses and even on the beneficiaries themselves, after the relief aid has been distributed. Food supplies are an attractive resource and can become part of the war economy. Providing for the food needs of people in conflict situations continues to be at the heart of our emergency operations, whether in Angola, Sierra Leone, Somalia, Kosovo, southern Sudan or the many other countries where armed conflict is part of WFP's working environment. In many conflict situations, humanitarian personnel have themselves become targets. Twelve WFP staff members lost their lives in 1998.

What should humanitarian agencies, such as WFP, do in situations where they cannot always guarantee that their aid will get to those who need it most? What should the international community do when governments deliberately deny people access to food? WFP staff face this dilemma every day. Should we withdraw or limit our assistance and thus try to pressure those in authority into providing the access that is required? Or should we remain, working in almost impossible conditions, often at great risk, unable to achieve all that we should, but at least helping to ease the suffering for some?

In some situations, such as providing assistance to the victims of civil strife in southern Sudan, we have taken the decision that the need for assistance is so pressing that we must remain. While we recognize that humanitarian aid is not an adequate replacement for diplomacy, we believe that our foremost responsibility is to save lives. We also recognize that it is unrealistic to expect a perfect system for access and distribution in Sudan.

In other situations, we have taken the decision to withdraw. In May last year, we withdrew assistance from 39 counties in the Democratic People's Republic of Korea because of constraints on the monitoring of WFP food. We took this action very reluctantly, and only because we had to provide assurance to the international community that the food aid provided through WFP was reaching the intended beneficiaries. Such assurance is impossible without monitoring. It meant that about three quarters of a million people, mostly women and children, would not receive urgently needed food from the international community.

To stay, or to go. We need to develop some internationally accepted criteria to guide us in making these sorts of decisions. The question is primarily a moral one, but it also has legal and political implications.

Challenges to Development Assistance

It is not only in humanitarian situations that we face these sorts of dilemmas. In many of the countries where WFP provides development assistance, governments could do much more to help their own people. Providing international assistance involves a risk that local and national governments will count on that assistance to replace, rather than support, their own efforts. The dilemma WFP and other international agencies face is: how to avoid a situation where the provision of assistance from the international community may discourage or substitute efforts by national and local authorities to help their own people. Some key challenges regarding this dilemma include:

· What are the right criteria to help guide humanitarian agencies in deciding when to get involved, when to stay involved, and when to withdraw in the emergency context (especially when governments deliberately deny access to civilians)? Do we stay, knowing that our food aid relieves the government of some of its obligations? (By staying we hope we will be in a better position to influence government decisions.) Or do we take the high moral stance and withdraw, knowing that this, at least in the short term, will mean that those living in poverty will continue to suffer?

· What is the threshold at which the extent of hunger in a country becomes so unacceptable that international support is needed?

· What practical steps should the international community expect governments to take to use available resources to reduce hunger? Additionally, what measures can be taken by us to encourage governments to do more to help their own people?

So, the challenge facing us is to clarify the international community's obligations in order to establish fair and more objective criteria to help us in deciding when and in what manner the international community should intervene.

The Challenge of Hunger and Poverty

The vast majority of hungry people do not lack food because they are affected by war. Nor are -they explicitly discriminated against by their governments. FAO reported last year that progress on meeting the World Food Summit's main target of halving the number of hungry by the year 2015, has been worryingly insufficient. This "lack of progress" report underscores the need for concrete actions to address the problem of hunger. Hundreds of millions of people suffer from the "silent emergency" of chronic hunger - they are simply by-passed in the development process. For these people, hunger often prevents them from participating in development.

To stay or to go?

Food is essential for health, growth and productivity. Nothing can replace it. And the prospect of food security in a few years cannot compensate for inadequate nutrition today. Food aid is a form of assistance that meets one of the most basic needs of low income families - families who typically must devote 65 to 70 percent of their income to food. Adequate food is a prerequisite to development. Hunger traps poor persons in a vicious inter-generational cycle of low-productivity - low earnings - low consumption - low productivity. Hunger is a constraint to development not only today but well into the future. The lack of access to adequate food and nutrition perpetrates poverty. Without food little happens: poor learning, little energy to work, little interest in civil development. Malnutrition in a youngster's life can permanently impair both physical and intellectual growth. Hungry children will not be able to concentrate on their studies. The hungry child of today may have an increased risk as an adult of heart disease and diabetes, as was highlighted by several experts at the SCN 22^nd Symposium on "Nutrition in the Epidemiology and Prevention of Cardiovascular Disease, Diabetes Mellitus, and Obesity in Developing Countries" in June 1995.

For people living on the edge, it does not take much to accentuate hunger. Trouble is far more likely to appear in the guise of a bad crop or loss of off-farm employment than a dramatic emergency resulting in famine conditions. Fluctuations in crop yields or shifts in market prices, wage rates or employment opportunities can push people who live on the margin over the edge into hunger. The setback may be relatively modest, but it may be more than these people can manage without jeopardizing their long-term prospects. If setback follows setback, their capacity to cope is gradually eroded and their vision of a right to food fades. The tradeoffs people from low socio-economic groups are forced to make to meet their daily food needs have negative consequences, both in the short and long term. Consider, for example, the long-term effects of the most common way of coping - that is to reduce or modify the amount of food eaten. The number of meals eaten by the family is reduced, or meals are smaller, or there is a shift to cheaper, less nutritious food. The result is chronic and seasonal malnutrition. While the household maintains itself above starvation level, the capacity of adult family members to work and earn is compromised; the capacity of children to learn is diminished; and the sound mental and physical development of infants is impaired. Another coping strategy is to reduce expenditure on health and education. When household income cannot cover all the necessities, children's education, particularly that of girls, receives less priority. When the supply of food is short, children are frequently taken out of school both in order to help with the time-consuming tasks involved in fulfilling food needs, and to avoid paying school fees and other costs. Children's school attendance very often becomes seasonal and their drop-out period corresponds to periods of lack of food. With little or no education, most of these children will be trapped in a cycle of poverty, unable to do much more than provide unskilled labour. For those persons living at the lowest levels of poverty, there is a clear link between hunger -inadequate food consumption - and investment. They are often just barely fending off destitution, with little or no capacity to invest in a better future. Until they have help with the problem of inadequate food consumption, hunger will continue to block their prospects for investment and thus development.

The WFP approach is to use food aid as a pre-investment to enable marginalized people to take up development opportunities. The food aid gives them temporary food security so that they can get started in the process of helping themselves. It is short term assistance that leads to long term progress. Food aid is not the only form of assistance that could be used in this way. But the reality is, that all too often many other forms of assistance ignore the day-to-day plight of those who are hungry.

We need a better balance between the level of increasingly scarce development resources invested in building long-term infrastructures - highways, power stations, factories - and the level of resources used to meet the pressing survival needs of the more than one billion people who live on less than one dollar a day. We look to people such as yourselves to help us develop criteria to guide us in making these sorts of decisions.

FOOD AS AN INTEGRAL PART OF
INTERNATIONAL PROTECTION

SOREN JESSEN-PETERSEN
ASSISTANT HIGH COMMISSIONER FOR REFUGEES
(delivered by Amelia Bonifacio, Director, Division of Operational Support, UNHCR)

Lack of food is a scourge for millions of people around the world. Refugees and other groups who have been violently uprooted by conflict, persecution and human rights abuses are particularly at risk. Many are forced to flee their homes with no more than the clothes they wear. In the countries of asylum the chances of becoming self-sufficient again -mainly through access to employment - are very remote. This means that refugees are largely dependent for their survival on the willingness and ability of the host State and the international aid community to feed them - which cannot always be guaranteed. Needless to say, women, children and the elderly are particularly vulnerable.

The provision of food aid - and where possible the achievement of self-reliance - must therefore be a key element of any refugee assistance programme. Food is not only a physical life-line for refugees - but it also plays a critical psychological role. The refugees' sense of dignity is often shattered by the very circumstances of their flight. Moreover, life in their new homes is frequently fraught with uncertainty. Having regular access to food - as well as health, water, sanitation and care - can both help restore their sense of integrity and provide them with a feeling of stability. Needless to say, this is critical for people whose lives have been severely disrupted by displacement.

Food is not only a physical life-line for refugees...it also plays a critical psychological role.

Food is an Integral Part of International Protection

Access to food is perhaps the most fundamental human right. If one does not have enough to eat, one cannot enjoy all the other human rights. The right to adequate food must, therefore, be a guiding principle for all humanitarian regime.

The 1951 Convention Relating to the Status of Refugees provides for host States to offer international protection to refugees who have fled their countries (and who by definition no longer benefit from national protection) until the conditions allow them to go back home. UNHCR support States in fulfilling their responsibilities in this respect. The international protection regime aims primarily at affording safety to refugees - by providing for them to enjoy asylum and not be forced to return to their country of origin as long as they may face persecution and other serious human rights violations. But, to be meaningful, protection must also aim to ensure that refugees benefit from other fundamental human rights - and not the least the right to adequate food. Physical safety with no food is no safety at all.

In keeping with the spirit and challenge of the Secretary-General's call to the whole UN system to integrate human rights into all policy and programming, UNHCR's own activities are guided by basic human rights principles. For example, our assistance programs provide a range of humanitarian assistance to refugees and others of concern including the provision of food and nutrition.

A Rights-based Approach to Food and Nutrition in the Refugee Protection Context

HCR fully favours the adoption of a rights-based approach in the refugee protection and assistance context. Its added-value lies in the fact that a rights-based approach:

· ensures that humanitarian action is based on the rights of the beneficiaries and is not simply a gratuitous act of charity

· calls for treating the refugee as an "active claimant" and not merely a "passive recipient", thereby giving the refugee a voice and power with which to participate to seek to meet their own basic needs

· underlines the legal obligations of States to meet the basic needs of the most vulnerable individuals (including refugees), and ensures that the work of humanitarian agencies such as UNHCR provides support to States in fulfilling their responsibilities, rather than being a substitute for State action (or inaction)

· helps provide a principled, predictable and structured framework within which humanitarian work can be undertaken and this, in turn, will help to define both the objective and content of humanitarian aid more clearly - particularly in the development and implementation of policy and programmes

· places humanitarian action within a rights-based framework which serves to define more clearly the respective areas of expertise and the responsibilities of the many different humanitarian actors (e.g., UNHCR and WFP have signed a Memorandum of Understanding which covers co-operation in the provision of food aid to refugees, returnees and, in specific situation, internally-displaced persons.)

· provides a stronger incentive for donor support for humanitarian efforts as traditional donor States (and their constituencies) often have a well-developed awareness of human rights as a basis for government action and by moving the debate away from charity (where the usual arguments of compassion fatigue and prioritization are invoked) to the language of rights and duties, the imperative for donor support can be made more forcefully.

Some Practical Suggestions

· There is a need for further consultations among the humanitarian actors concerned with how to best adopt a human rights approach to food and nutrition. Joint training and workshops would ensure a common approach.

· Common guidelines should be developed or improved to give a blueprint for future and coordinated action in this area.

· It is important to increase the awareness among donors in terms of the right to food and nutrition and its importance in the integrated circuit of assistance sectors.

· It is critical that the debate on the right to adequate food and nutrition does not take place in isolation from all the other fundamental rights - such as education, health, housing, as well as the rights of women and children - which must also be fully integrated in all policy planning and programmes.

· The development of economic and social rights must be gradual and evolutionary - nonetheless, it is one that is of central importance to UNHCR, and the SCN and others can count on our interest and support in this process.

In conclusion, the content of the right to food and nutrition is in no way incompatible with UNHCR's protection mandate that seeks to ensure adequate humanitarian assistance to refugee populations. In reality, the rights-based approach to assessing and providing needed food to refugees will strengthen requests to donors and host governments and allow for the needs of refugees to be met in a dignified and participatory manner.

If one does not have enough to eat, one cannot enjoy all the other human rights. The right to adequate food must...be a guiding principle...

MONITORING, SUPERVISION AND DIALOGUE IN THE HUMAN
RIGHTS SYSTEM, CHALLENGES
FOR THE UN DEVELOPMENT AGENCIES

VIRGINIA B DANDAN
CHAIRPERSON, COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS
UNITED NATIONS HIGH COMMISSION FOR HUMAN RIGHTS

The International Covenant on Economic, Social and Cultural Rights

United Nations action in the promotion, protection and monitoring of human rights and fundamental freedoms is rooted in the International Bill of Human Rights (IBHR) which consists of three instruments - the Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). These instruments define human rights standards which, have in turn, provided the basis for the elaboration of legal norms concerning women's rights, the rights of children, protection against racial discrimination, protection against torture and many others.

The two Covenants are international legal instruments and when a State ratifies a Covenant, it becomes a "State Party" and voluntarily takes upon itself legal obligations enshrined in that Covenant. In other words, in ratifying a human rights treaty, a State becomes accountable to the international community regarding its compliance with its treaty obligations.

The concept of State accountability can perhaps be better understood in the light of its obligation of submitting a periodic report regarding the measures it has taken to comply with the provisions of the Covenant concerned. Today we will focus on the ICESCR which is the only legally binding international treaty of the United Nations that deals exclusively with economic, social and cultural rights.

The Covenant expresses norms and values that should inform the life of each one of us - the right to protection from discrimination, the right to work, to just and favorable conditions of work, to social security, to an adequate standard of living and to the highest attainable standards of physical and mental health; the right to education, to culture and to the enjoyment of the benefits of scientific progress. Towards this end, States Parties are obliged to submit periodic reports regarding their compliance of their obligations according to the Covenant. To date there are 137 States Parties to the Covenant.

I urge representatives from all UN development agencies to take their seats at Committee sessions, stay seated, and begin to participate in earnest in the monitoring and supervisory work of the CESCR.

The Work of the Committee on Economic, Social and Cultural Rights

In order to illustrate how the processes of monitoring and supervision operate within the United Nations treaty-body system, let us examine the work of the Committee on Economic, Social and Cultural Rights which was established in 1985 by the United Nations Economic and Social Council (ECOSOC) primarily to monitor the implementation of the Covenant. The Committee which meets twice a year in Geneva has thus far held 19 sessions. The Committee is composed of 18 independent experts. They serve in their individual capacities, and although nominated by their governments, are not themselves government representatives. Committee members are elected for four- year terms by the ECOSOC and are eligible for reelection if nominated. The Committee draws on the expertise of its members in providing assistance to governments in fulfilling their obligations under the Covenant, through suggestions and recommendations towards ensuring the realization of economic, social and cultural rights (UN Fact Sheet No. 16 Rev. 1).

Periodic reports of States Parties are prepared according to the Committee's general guidelines for reporting which are intended to facilitate the preparation of reports and ensure that the issues of principal concern are dealt with in a methodical and informative manner (ECOSOC E/C.12/1991/1, 17 June 1991). When a State Party's report is received by the UN, it is translated by the Secretariat into the UN working languages, after which the report is reviewed by the Committee's five-member pre-sessional working group meeting six months prior to its consideration by the Committee at its succeeding session.

Representatives of the State Party formally present the report during a Committee session and engage in an extensive dialogue with Committee members who may comment and ask further questions in relation to the report and other information received by the Committee from other sources. At the end of the dialogue, the Committee concludes its consideration of the report by adopting a set of concluding observations regarding the compliance of State Party to the Covenant. The Committee bases its concluding observations on all the relevant materials available to it, including its dialogue with representatives of the reporting State Party. Concluding observations focus on several aspects - factors and difficulties which impede the implementation of the Covenant, positive factors, principal subjects of concern and suggestions and recommendations. Concluding observations, which comprise part of the annual Committee report to the Economic and Social Council, are sent to the reporting State Party's permanent mission during the last afternoon of the Committee session.

The Reporting Mechanism

The Committee attaches great value to the reporting process not only because it is in fulfillment of an obligation on the part of the State Party, but also because it fulfills other functions: the initial review, monitoring, policy formulation, public scrutiny, evaluation, acknowledging problems and information-exchange (P. Alston, 1991). General Comment 1 adopted by the Committee during its third session in 1989 sets out seven objectives of its reporting system. The following are excerpts from these seven objectives which elaborate on the functions of the reporting process (UN HRI/Gen/1/Rev. 3):

· A first objective which is of particular relevance to the initial report required to be submitted within two years of the Covenant's entry into force for the State Party concerned, is to ensure that a comprehensive review is undertaken with respect to national legislation, administrative rules and procedures and practices in an effort to ensure the fullest possible conformity with the Covenant.

· A second objective is to ensure that the State Party monitors the actual situation with respect to each of the rights on a regular basis and is thus aware of the extent to which the various rights are or are not being enjoyed by all individuals within its territory or under its jurisdiction.

· While monitoring is designed to give a detailed overview of the existing situation, the principal value of such an overview is to provide the basis for the elaboration of clearly stated and carefully targeted policies, including the establishment of priorities which reflect the provisions of the Covenant. Therefore a third objective of the reporting process is to enable the Government to demonstrate that such principled policy-making has in fact been undertaken.

· A fourth objective of the reporting process is to facilitate public scrutiny of government policies with respect to economic, social and cultural rights and to encourage the involvement of the various economic, social and cultural sectors of society in the formulation, implementation, and review of the relevant policies.

· A fifth objective is to provide a basis on which the State Party itself, as well as the Committee, can effectively evaluate the extent to which progress has been made towards the realization of the obligations contained in the Covenant.

· A sixth objective is to enable the State Party itself to develop a better understanding of the problems and shortcomings encountered in efforts to realize progressively the full range of economic, social and cultural rights.

· A seventh objective is to enable the Committee, and the States Parties as a whole, to facilitate the exchange of information among States and to develop a better understanding of the common problems faced by States and a fuller appreciation of the type of measure which might be taken to promote effective realization of each of the rights contained in the Covenant.

Sources of Information

Five to six reports are considered by the Committee during each session and these reports are scheduled way in advance of their actual consideration. This provides some time for the Committee to receive from various sources, relevant information on the status of economic, social and cultural rights in States Parties whose reports are scheduled for consideration.

In this respect the non-governmental community plays a major role in the work of the Committee, a fact that the Committee has always recognized and acknowledged. The CESCR was the first treaty body to welcome statements from NGOs regarding the status of economic social and cultural rights in specific countries. At its first session in 1987, the Committee asked ECOSOC to consider its Resolution 1296 applicable to the Committee so that NGOs in consultative status would be able to submit written statements to it. The Committee has since set aside the first afternoon of each session for receiving oral information from NGOs. Photo and video documentation are also particularly effective sources of information, and are a welcome respite from the tons of documents that have to be read by Committee members.

NGOs consistently contribute to the work of the CESCR in many meaningful ways. The information they provide assists the Committee to draw concluding observations that address country-specific situations. The entire exercise of monitoring, reporting and dialogue would amount to little if the process ended after the Committee sent off its concluding observations to the government concerned. In this respect, NGOs have been invaluable in the effective follow-up of concluding observations on the national level. Although concluding observations may not carry legally binding status, they constitute the opinion of the only expert body with the capacity and the mandate to make such pronouncements. For a State Party to ignore the views of the Committee is tantamount to bad faith in the implementation of treaty obligations.

Country-specific information is received by the CESCR from a number of diverse sources and it is not uncommon that disparities can occur in these data. Thus, the Committee has to put itself into a position where it must draw its own conclusions. CESCR is most effective when it has a clear picture of economic, social and cultural rights situations in practice, in real terms and on the ground as it were. It can arrive at this only if it is able to elicit the answers it needs during its dialogue with representatives of State Parties. Clearly then, the Committee has to ask the right questions to get the information it wants.

UN Development Agencies as Partners

The United Nations development agencies are in a unique position to contribute to the process of monitoring, reporting and dialogue in the human rights system. These agencies have the financial capacity and expertise to gather valuable data based on indicators relevant to their mandates. They are the major sources of statistical data and in fact, in many cases, the only source of statistics particularly in developing countries which do not possess the financial means nor the expertise to collect their own data. Updated country-specific information is at the core of the effective operations of the UN development agencies and it is presumed that such information is accessible at any given time. Data emanating from UN agencies are always considered to be precise and accurate. This is the reason the Committee has been inviting UN development agencies to provide relevant data.

In this regard, the Committee has received disappointingly little response. From CESCR's perspective it seems that UN development agencies have largely ignored or neglected economic, social and cultural rights. This reality is ironic because economic, social and cultural rights are at the very core of development. I propose that the lack of participation in CESCR activities has arisen due to a misunderstanding of the importance of the Committee's work and your potential roles in that work. If UN agencies were to take more interest in the work of the Committee, its work would be greatly assisted and enhanced. On the few occasions that UN development agencies have provided information, the data received made a difference in the outcome of the concluding observations.

Data emanating from UN agencies are always considered to be precise....This is the reason the Committee has been inviting UN development agencies to [Committee Sessions]...

The Committee's General Comment 2 adopted in its fourth session in 1990 is devoted to Article 22 of the Covenant which focuses on international technical assistance measures. In this General Comment, the Committee draws attention to measures which relevant bodies might consider when integrating human rights concerns into development activities (HRI/GEN/1/Rev. 3). It should be emphasized here that development cooperation activities do not automatically contribute to the respect for economic, social and cultural rights. Recognition of the intimate relationship which should link development activities and the promotion of respect for economic, social and cultural rights, will minimize development activities that are ill conceived and even counterproductive in human rights terms.

I urge UN development agencies to fix their sights on the human rights dimension of their work in order to promote the "human dimension of development." I urge that human rights standards and principles be made a part of the training given to project and other personnel employed by United Nations agencies. I urge that the rights enshrined in the Covenant should be taken into account in assessing each phase of development projects. And I urge representatives from all UN development agencies to take their seats at Committee sessions, stay seated, and begin to participate in earnest in the monitoring and supervisory work of the Committee. Thank you.

References

Alston P (1991) "The Purposes of Reporting" in Manual for Human Rights Reporting. United Nations Centre for Human Rights/United Nations Training and Research, pp. 14-16.

United Nations Economic and Social Council E/C.12/1991/1 (17 June 1991) Revised General Guidelines Regarding the Form and Contents of Reports to be Submitted by States Parties under Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights.

United Nations Fact Sheet No. 16 Rev. 1 (1996) The Committee on Economic, Social and Cultural Rights, p. 24, Geneva.

United Nations International Human Rights Instruments HRI/GEN/1/Rev.3 (1997) General Comment 1 Reporting by States Parties pp. 56-58.

United Nations International Human Rights Instruments HRI/GEN/1/Rev.3 (1997) General Comment 2 International Technical Assistance Measures (Art. 22 of the Covenant) pp. 58-61.

For further information contact Dr Dandan at College of Fine Arts, University of the Philippines, Diliman, Quezon City 1101, Philippines; fax: 632 430 8522; email; [email protected]

DISCUSSION...
WITH DR DANDAN

Tom Marchione (USAID): How efficacious is the process of the committee? Where has reporting on a negative finding resulted in changes with the country involved?

Dr Dandan: A few years ago in my own country, the Philippines, the committee received urgent reports that thousands of families were going to be displaced in an area by Manila Bay. When a judge declared that there was no such thing as a right to adequate housing, the committee viewed this as a supreme occasion to really see how the Covenant would hold. We reminded the Government of the Philippines of the Covenant and, to make a long story short, the Government desisted from moving all of these people. I think that is a very succinct sample of how the committee can work.

Wenche Barth Eide (WANAHR): Do you feel that the area of food and nutrition as a human right is more complicated than, for example, housing?

Dr Dandan: Both of these rights fall under Article 11, the right to an adequate standard of living, and frankly, the committee has not considered which one is more complicated. The complexity of these two rights have to do with the complexity of a country's situation. I will say that the right to adequate food is very closely related to the right to health, the right to education and the right to the protection of the family.

Michael Windfuhr (FIAN): What type of information is the committee now receiving from the agencies present at this symposium regarding States' compliance with economic, social and cultural rights? What type of information you would like to obtain in the future?

Dr Dandan: For instance, the activities within the Office of the High Commissioner for Human Rights are posted on their internet site and include a very detailed schedule of which States parties will be reporting within the next two years. If you could provide the committee with relevant statistics and analysis regarding these countries and your mandate regarding food and nutrition issues it would be most welcomed. You are the experts and the committee members have no capacity to analyse such data.

If you read the Draft General Comment...you will know how strongly the Committee feels about the right to food...

Bertie Ramcharan (UNHCHR): We have been told that the Covenant requires the States to take measures to the maximum of its ability such as legislation, etc. to pursue a rights-based approach. We have been told that you may not discriminate and you must have gender equality. We have been told that the Covenant says that freedom from hunger is a fundamental right and that that probably carries some significance. And we have been told that there are 20 countries which have the right to food in their constitution and of these 20, none of them have legislation. If we are to make the implementation of this Covenant real, what should we do? Any comments from our participants?

Elisabet Helsing (WABA): If a State has never formally pronounced itself on nutrition in any document, would they still be responsible? What degree of authority do you need in order to say that the State has actually promised that the population should have access to a health and nutrition?

Dr Dandan: I refer you to the Draft General Comment on the right to adequate food which clearly delineates States obligations. The purpose of general comments is precisely to clarify issues in order to assist States parties to realize what their obligations are according to the articles in the Covenant. The revised reporting guidelines of the committee tell you what authority you need, and the important issues that must be addressed in a State report. Perhaps development agencies can begin by including these human rights standards in personnel training for their projects. Assessments of development projects should also examine the human rights dimension. We can begin with these activities immediately, even without 'so-called' expertise in human rights.

Arne Oshaug (Norway): I don't think there is a simple answer or blueprint to this question. What I have found is that when I started to take up this human rights issue with the Ministry of Agriculture in Norway, was that nobody knew that such a thing existed, that it was important, or that Norway had ratified the Covenant. We have pushed human rights internationally, but not domestically; before it was taken up internally, the Ministry of Development Cooperation worked to adopt a policy in the parliament to strengthen human rights domestically. Now we have come to the stage where we have a political commitment in one ministry that can ask the other ministries to respond. In a ministry, if there is no knowledge and no competence of food and nutrition as a human right, ministers are not going to touch it; increased awareness and competence within the ministries are absolutely essential in order to move forward with the human rights approach.

The next thing is to begin the process of legislation, and every country needs to do this based on their own political mandates in their own documents. Countries have to report regularly in their own performance in fulfilling their economic, social and cultural rights. There is a guidelines for helping countries in this reporting process. I have seen requests for a country report from the committee, and tried to help out in the reporting. The request normally comes to the government agencies or departments too late. The reporting format invites States to cut and paste from whatever reports they have on the food and nutrition situation of the country; and it is really not human rights reporting. Unless you establish good guidelines for how the country should report, the reports will not be useful.

Dr Dandan: If you read the Draft General Comment on the right to adequate food you will know how strongly the committee feels about the right to food, and why this General Comment exists. This General Comment is meant to assist States to report on the situation of the right to adequate food in their countries; it is a response to States' requests during the World Food Summit to better define the rights related to food in Article 11 of the Covenant. In spite of the fact that there is an existing guideline for States reporting, we get very little information on the right to adequate food.

The Draft General Comment can be improved. In particular I seek your comments on paragraph 10, "...the right to adequate food shall therefore not be interpreted in a narrow or restricted sense which equates it with a minimum package of calories and proteins." and that the ultimate objective is to achieve nutritional well-being. We cannot, however, just focus on nutritional well-being alone. There are so many parallel developments in the fields of health, education, housing, and even in cultural traditions that have an impact on the right to adequate food.

The General Comment states that adequate food means the availability of food for everyone, distributed in sustainable and culturally acceptable ways in sufficient quantity and quality to satisfy the nutritional and dietary needs of every individual. The committee would like to know what the concept of adequacy means to you.

The General Comment even identifies whatever steps may be necessary to ensure that adequate consumption of food will include appropriate measures to respect and promote traditional food patterns. It talks about food embargoes and economic sanctions in relation to nutrition. And it talks about emergencies: what are the State party obligations in relation to providing disaster relief and humanitarian assistance? Your agencies can help address how States parties should develop and maintain mechanisms to monitor problems towards the realisation of the right to adequate food; to identify the factors and difficulties affecting the degree of implementation of their obligations; and to facilitate the adoption of corrective legislative and administrative measures. After the General Comment is adopted, it becomes part of the jurisprudence of the committee and therefore, these particular issues that we identify and discuss will then be a part of the States obligations.

If you are looking for a blue-print, a map, we can begin with the General Comment. I would like to be able to go back to my committee with input from this SCN group to signal that there is interest in the nutrition sector about the right to adequate food. And so in the spirit of Article 56 of the UN Charter, the Rome Declaration of the World Food Summit, and specific provisions contained in the Covenant, State parties should recognize the essential role of international co-operation and reaffirm their commitment to take joint and separate action to achieve the full realisation of the right to food and that, in effect, is the mandate of all development agencies.

Bertie Ramcharan (UNHCHR): The general comments of human rights committees have the role such that they become syntheses of the best thinking that is available in the international community on a particular issue or a particular right. A concrete output of this meeting could be precisely an enhanced document with your comments.

If you are looking for a blue-print, a map, we can begin with the General Comment.

TOWARDS A DEFINITION OF
THE RIGHT TO FOOD AND NUTRITION:

REFLECTIONS ON GENERAL COMMENT No. 12

WENCHE BARTH EIDE AND UWE KRACHT
ACC/SCN WORKING GROUP ON NUTRITION, ETHICS AND HUMAN RIGHTS

In Commitment 7, Objective 7.4 of its Plan of Action, the World Food Summit requested the UN High Commissioner for Human Rights to "...clarify the content of the right to food and the fundamental right of everyone to be free from hunger...and to give particular attention to implementation and full and progressive realisation of these rights as a means of achieving food security for all." Since then a number of activities have taken place towards an authoritative definition of the human right to food, and to move towards its implementation world wide. The most recent, and also the hitherto most significant step in this process, was the adoption on May 12, 1999 of its 12^th General Comment by the CESCR on the right to adequate food created to monitor compliance with the International Covenant.

Monitoring the implementation and realisation of food and nutrition rights

The monitoring focuses on the implementation of the obligations undertaken by the State. To do so, benchmarks or indicators are necessary. Normal monitoring of the food and nutrition situation as it is known by the nutrition community makes use of indicators constructed from various parameters judged by experts to be useful and sensitive. Monitoring the implementation of the right to food and nutrition is a somewhat different matter and requires agreement of what that concept should imply. The articles of the conventions set out the various rights in rather vague and general terms and are therefore not, without further clarification, well fit for more precise monitoring. The monitoring that does take place risks being affected by each monitor's own discipline, sector and understanding of the respective articles.

The right to food is a good example. The text of the core instrument on this right - CESCR Article 11 - was written before 1966 when it was adopted by the General Assembly. After the required number of States (35) had ratified it by 1976, it entered into force. The vaguely-formulated rights, and the steps required to realize the right to adequate food as such and at least to ensure freedom from hunger, are affected by the vision and understanding prevalent in 1966. As a standard against which to monitor the right to adequate food in the late 1990s, the right needs to be better articulated both for the purpose of States Parties or others to report on its implementation and for the Committee in question to be able to use it in its consideration and judgement of the reports.

"General Comments"

A firm and inflexible standard for the right to food or nutrition is neither needed nor possible given the many ways in which these rights can be realized. The need, however, for universally applicable elaborations of the meaning of certain articles, such as Article 11, is beyond dispute. Of significant interest to the nutrition community is the Committee's understanding of the normative content on the right to food and of the nature of the corresponding obligations of States to realize the right. While the concepts of adequacy, stability and sustainability stand central to the understanding of the content regarding both supply and access, the identification of obligations builds on an understanding of different "levels" of such obligations, originally proposed in terms of respect, protect and fulfil. At the same time this categorization facilitates the clarification of the role of non-state actors - civil society and the private sector - and a desirable interaction between groups of actors.

Obligations - three or four levels?

The framework points to the need for an integration of knowledge from many sectors in identifying State obligations, and the opportunity to bring up in full transparency any potential conflicts of interest, with the participation of all parties affected. Since 1994 there has been ongoing discussion regarding whether the three levels should be expanded to four levels: the obligations to respect, protect, facilitate and fulfil¹. The reason has been the felt need to distinguish between the right to receive assistance to feed oneself, and the right to be directly provided with food through safety nets and social programmes. Many development actors have welcomed the idea of four levels to differentiate between an "enabling" vs. a "giving" function of the State.

¹ Among those who first wrote about the desirability of using four levels of obligations was JR Himes: Resource mobilization and the obligations of the states. UNICEF Innocenti Occasional Papers, 2, Child Rights Series, 1993.

The CESCR, however, in adopting its General Comment chose to go back to three major categories, albeit with a subdivision of the "fulfil" level ("facilitate" and "provide"). The value of the authoritative nature and standing of a General Comment indicates that the Committee's standpoint should now form the foundation of all future work on the analysis and implementation of the right to adequate food. The three-level frame can be accommodated within the following legal understanding of a division of obligations into passive, negative and positive obligations. Passive obligations (abstain from any involvement) may be exemplified by respecting the prevailing ownership relations to the means of production/resources for adequate food and praxis with regard to the provisioning of adequate food where these already function satisfactorily (entitlements). Negative obligations(protect against something happening) would be to protect these against threats from a third party, while positive obligations (ensure that something happens) would imply to "fulfil" the right when this is necessary. In the General Comment, however, fulfil is understood in terms of varying degrees of governmental intervention: from active facilitation by the State to enable people to feed themselves, to the State taking a direct hand in providing food to those segments of the population unable to so².

²The Committee's final choice of terminology regarding levels comes close to the nuances made by A Eide in the original proposal for three levels, where the third was expressed as "assist and fulfil". In many later contexts, such as the Limburg- and Maastricht-statements, the notion of assist has often gone astray.

Linking the dynamics of "development" vs. "crises"

The variations within "positive obligations" thereby inserted themselves into the debate about "development" vs. "emergencies" which transpired during the early 1990s in connection with the debate on "famine mitigation". Earlier, sharp demarcation lines between the two categories were substituted by the notion of a continuum in the evolution towards crises, where the understanding of concepts such as chronic vs. transitional vulnerability and early warning systems must lead to the right assistance at the right moment in order to avoid catastrophic situations.

While the four levels of obligations were welcomed in development circles insofar as they pointed to operationalization of typical development efforts towards "an enabling environment", the final expression by the CESCR is no less potent in this regard. In legal terms it fits a subdivision of State obligations into passive, negative and positive. In development terms, defining facilitating (for development) and giving (in emergencies) as a continuum of increasing direct State involvement rather than as discrete and separable activities, is in line with the modem notion of food security/insecurity dynamics. It is hoped that the subdivision of the third obligation will prove to be yet another step forward towards linking major legal and development concepts and language to the advancement of the right to adequate food and nutrition.

Practical use of the General Comment

Guidelines have been issued by ECOSOC for State Parties in their periodical obligatory reporting to the CESCR, including on the right to food. General Comment No. 12 may pave the way for improved guidelines for reporting on the realization of the right to adequate food in any country. The General Comment is not necessarily the last word on the content and implementation of right to food. The High Commissioner will make her views clear when she reports back to Member States (most likely through the CHR and FAO Committee on Food Security, the forum for follow-up of the WFS Plan of Action) on her conclusions in response to her WFS mandate. General Comment No. 12 will in any case have a considerable influence on the substance of her response. For now General Comment No. 12 provides us with a common tool and language allowing a fruitful cross-facilitation between human rights and nutrition in development communities.

W Barthe Eide may be contacted at +47 22 142 740; [email protected]. U Kracht at +3906 3540 9595; [email protected]

Figure

UNHCHR - Committee On Economic, Social And Cultural Rights
Twentieth session - Geneva, 26 April-14 May 1999

Agenda item 7: Substantive Issues Arising In The Implementation Of The International
Covenant On Economic, Social And Cultural Rights: General Comment 12
The right to adequate food (art. 11)

Introduction and basic premises

1. The human right to adequate food is recognized in several instruments under international law. The International Covenant on Economic, Social and Cultural Rights deals more comprehensively than any other instrument with this right. Pursuant to article 11.1 of the Covenant, States parties 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", while pursuant to article 11.2 they recognize that more immediate and urgent steps may be needed to ensure "the fundamental right to freedom from hunger and malnutrition". The human right to adequate food is of crucial importance for the enjoyment of all rights. It applies to everyone; thus the reference in Article 11.1 to "himself and his family" does not imply any limitation upon the applicability of this right to individuals or to female-headed households.

2. The Committee has accumulated significant information pertaining to the right to adequate food through examination of State parties' reports over the years since 1979. The Committee has noted that while reporting guidelines are available relating to the right to adequate food, only few States parties have provided information sufficient and precise enough to enable the Committee to determine the prevailing situation in the countries concerned with respect to this right and to identify the obstacles to its realization. This General Comment aims to identify some of the principal issues which the Committee considers to be important in relation to the right to adequate food. Its preparation was triggered by the request of Member States during the 1996 World Food Summit, for a better definition of the rights relating to food in article 11 of the Covenant, and by a special request to the Committee to give particular attention to the Summit Plan of Action in monitoring the implementation of the specific measures provided for in article 11 of the Covenant.

3. In response to these requests, the Committee reviewed the relevant reports and documentation of the Commission on Human Rights and of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on the right to adequate food as a human right; devoted a day of general discussion to this issue at its seventh session in 1997, taking into consideration the draft international code of conduct on the human right to adequate food prepared by international non-governmental organizations; participated in two expert consultations on the right to adequate food as a human right organized by the Office of the United Nations High Commissioner for Human Rights (OHCHR), in Geneva in December 1997, and in Rome in November 1998 co-hosted by the Food and Agriculture Organization of the United Nations (FAO), and noted their final reports. In April 1999 the Committee participated in a symposium on "The substance and politics of a human rights approach to food and nutrition policies and programmes", organized by the Administrative Committee on Co-ordination/Sub-Committee on Nutrition of the United Nations at its twenty-sixth session in Geneva and hosted by OHCHR.

4. The Committee affirms that the right to adequate food is indivisibly linked to the inherent dignity of the human person and is indispensable for the fulfilment of other human rights enshrined in the International Bill of Human Rights. It is also inseparable from social justice, requiring the adoption of appropriate economic, environmental and social policies, at both the national and international levels, oriented to the eradication of poverty and the fulfilment of all human rights for all.

5. Despite the fact that the international community has frequently reaffirmed the importance of full respect for the right to adequate food, a disturbing gap still exists between the standards set in article 11 of the Covenant and the situation prevailing in many parts of the world. More than 840 million people throughout the world, most of them in developing countries, are chronically hungry; millions of people are suffering from famine as the result of natural disasters, the increasing incidence of civil strife and wars in some regions and the use of food as a political weapon. The Committee observes that while the problems of hunger and malnutrition are often particularly acute in developing countries, malnutrition, under-nutrition and other problems which relate to the right to adequate food and the right to freedom from hunger, also exist in some of the most economically developed countries. Fundamentally, the roots of the problem of hunger and malnutrition are not lack of food but lack of access to available food, inter alia because of poverty, by large segments of the world's population

Normative content of article 11, paragraphs 1 and 2

6. 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. The right to adequate food shall therefore not be interpreted in a narrow or restrictive sense which equates it with a minimum package of calories, proteins and other specific nutrients. The right to adequate food will have to be realized progressively. However, 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 or other disasters.

Adequacy and sustainability of food availability and access

7. The concept of adequacy is particularly significant in relation to the right to food since it serves to underline a number of factors which must be taken into account in determining whether particular foods or diets that are accessible can be considered the most appropriate under given circumstances for the purposes of article 11 of the Covenant. The notion of sustainability is intrinsically linked to the notion of adequate food or food security, implying food being accessible for both present and future generations. The precise meaning of "adequacy" is to a large extent determined by prevailing social, economic, cultural, climatic, ecological and other conditions, while "sustainability" incorporates the notion of long-term availability and accessibility.

8. The Committee considers that the core content of the right to adequate food 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 human rights.

9. Dietary needs implies that the diet as a whole contains a mix of nutrients for physical and mental growth, development and maintenance, and physical activity that are in compliance with human physiological needs at all stages throughout the life cycle and according to gender and occupation. Measures may therefore need to be taken to maintain, adapt or strengthen dietary diversity and appropriate consumption and feeding patterns, including breast-feeding, while ensuring that changes in availability and access to food supply as a minimum do not negatively affect dietary composition and intake.

10. Free from adverse substances sets requirements for food safety and for a range of protective measures by both public and private means to prevent contamination of foodstuffs through adulteration and/or through bad environmental hygiene or inappropriate handling at different stages throughout the food chain; care must also be taken to identify and avoid or destroy naturally occurring toxins.

11. Cultural or consumer acceptability implies 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.

12. Availability refers to 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.

13. Accessibility encompasses both 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. Economic accessibility applies to any acquisition pattern or entitlement through which people procure their food and is a measure of the extent to which it is satisfactory for the enjoyment of the right to adequate food. Socially vulnerable groups such as landless persons and other particularly impoverished segments of the population may need attention through special programmes.

Physical accessibility implies that adequate food must be accessible to everyone, including physically vulnerable individuals, such as infants and young children, elderly people, the physically disabled, the terminally ill and persons with persistent medical problems, including the mentally ill. Victims of natural disasters, people living in disaster-prone areas and other specially disadvantaged groups may need special attention and sometimes priority consideration with respect to accessibility of food. A particular vulnerability is that of many indigenous population groups whose access to their ancestral lands may be threatened.

Obligations and violations

14. The nature of the legal obligations of States parties are set out in article 2 of the Covenant and has been dealt with in the Committee's General Comment No. 3 (1990). The principal obligation is to take steps to achieve progressively the full realization of the right to adequate food. This imposes an obligation to move as expeditiously as possible towards that goal. Every State is obliged to ensure for everyone under its jurisdiction access to the minimum essential food which is sufficient, nutritionally adequate and safe, to ensure their freedom from hunger.

15. The right to adequate food, like any other human right, imposes three types or levels of obligations on States parties: the obligations to respect, to protect and to fulfil. In turn, the obligation to fulfil incorporates both an obligation to facilitate and an obligation to provide.¹ The obligation to respect existing access to adequate food requires States parties not to take any measures that result in preventing such access. The obligation to protect requires measures by the State to ensure that enterprises or individuals do not deprive individuals of their access to adequate food. The obligation to fulfil (facilitate) means the State must pro-actively engage in activities intended to strengthen people's access to and utilization of resources and means to ensure their livelihood, including food security. Finally, whenever an individual or group is unable, for reasons beyond their control, to enjoy the right to adequate food by the means at their disposal, States have the obligation to fulfil (provide) that right directly. This obligation also applies for persons who are victims of natural or other disasters.

¹Originally three levels of obligations were proposed: to respect, protect and assist/fulfil. (See Right to adequate food as a human right, Study Series No. 1, New York, 1989 (United Nations publication, Sales No. E.89.XIV.2).) The intermediate level of "to facilitate" has been proposed as a Committee category, but the Committee decided to maintain the three levels of obligation.

16. Some measures at these different levels of obligations of States parties are of a more immediate nature, while other measures are more of a long-term character, to achieve progressively the full realization of the right to food.

17. Violations of the Covenant occur when a State fails to ensure the satisfaction of, at the very least, the minimum essential level required to be free from hunger. In determining which actions or omissions amount to a violation of the right to food, it is important to distinguish the inability from the unwillingness of a State party to comply. Should a State party argue that resource constraints make it impossible to provide access to food for those who are unable by themselves to secure such access, the State has to demonstrate that every effort has been made to use all the resources at its disposal in an effort to satisfy, as a matter of priority, those minimum obligations. This follows from Article 2.1 of the Covenant, which obliges a State party to take the necessary steps to the maximum of its available resources, as previously pointed out by the Committee in its General Comment No. 3, paragraph 10. A State claiming that it is unable to carry out its obligation for reasons beyond its control therefore has the burden of proving that this is the case and that it has unsuccessfully sought to obtain international support to ensure the availability and accessibility of the necessary food.

18. Furthermore, any discrimination in access to food, as well as to means and entitlements for its procurement, on the grounds of race, colour, sex, language, age, religion, political or other opinion, national or social origin, property, birth or other status with the purpose or effect of nullifying or impairing the equal enjoyment or exercise of economic, social and cultural rights constitutes a violation of the Covenant.

19. Violations of the right to food can occur through the direct action of States or other entities insufficiently regulated by States. These include: the formal repeal or suspension of legislation necessary for the continued enjoyment of the right to food; denial of access to food to particular individuals or groups, whether the discrimination is based on legislation or is pro-active; the prevention of access to humanitarian food aid in internal conflicts or other emergency situations; adoption of legislation or policies which are manifestly incompatible with pre-existing legal obligations relating to the right to food; and failure to regulate activities of individuals or groups so as to prevent them from violating the right to food of others, or the failure of a State to take into account its international legal obligations regarding the right to food when entering into agreements with other States or with international organizations.

20. While only States are parties to the Covenant and are thus ultimately accountable for compliance with it, all members of society - individuals, families, local communities, nongovernmental organizations, civil society organizations, as well as the private business sector - have responsibilities in the realization of the right to adequate food. The State should provide an environment that facilitates implementation of these responsibilities. The private business sector - national and transnational - should pursue its activities within the framework of a code of conduct conducive to respect of the right to adequate food, agreed upon jointly with the Government and civil society.

Implementation at the national level

21. The most appropriate ways and means of implementing the right to adequate food will inevitably vary significantly from one State party to another. Every State will have a margin of discretion in choosing its own approaches, but the Covenant clearly requires that each State party take whatever steps are necessary to ensure that everyone is free from hunger and as soon as possible can enjoy the right to adequate food. This will require the adoption of a national strategy to ensure food and nutrition security for all, based on human rights principles that define the objectives, and the formulation of policies and corresponding benchmarks. It should also identify the resources available to meet the objectives and the most cost-effective way of using them.

22. The strategy should be based on a systematic identification of policy measures and activities relevant to the situation and context, as derived from the normative content of the right to adequate food and spelled out in relation to the levels and nature of State parties' obligations referred to in paragraph 15 of the present general comment. This will facilitate coordination between ministries and regional and local authorities and ensure that related policies and administrative decisions are in compliance with the obligations under article 11 of the Covenant.

23. The formulation and implementation of national strategies for the right to food requires full compliance with the principles of accountability, transparency, people's participation, decentralization, legislative capacity and the independence of the judiciary. Good governance is essential to the realization of all human rights, including the elimination of poverty and ensuring a satisfactory livelihood for all.

24. Appropriate institutional mechanisms should be devised to secure a representative process towards the formulation of a strategy, drawing on all available domestic expertise relevant to food and nutrition. The strategy should set out the responsibilities and time-frame for the implementation of the necessary measures.

25. The strategy should address critical issues and measures in regard to all aspects of the food system, including the production, processing, distribution, marketing and consumption of safe food, as well as parallel measures in the fields of health, education, employment and social security. Care should be taken to ensure the most sustainable management and use of natural and other resources for food at the national, regional, local and household levels.

26. The strategy should give particular attention to the need to prevent discrimination in access to food or resources for food. This should include: guarantees of full and equal access to economic resources, particularly for women, including the right to inheritance and the ownership of land and other property, credit, natural resources and appropriate technology; measures to respect and protect self-employment and work which provides a remuneration ensuring a decent living for wage earners and their families (as stipulated in article 7 (a) (ii) of the Covenant); maintaining registries on rights in land (including forests).

27. As part of their obligations to protect people's resource base for food, States parties should take appropriate steps to ensure that activities of the private business sector and civil society are in conformity with the right to food.

28. Even where a State faces severe resource constraints, whether caused by a process of economic adjustment, economic recession, climatic conditions or other factors, measures should be undertaken to ensure that the right to adequate food is especially fulfilled for vulnerable population groups and individuals.

Benchmarks and framework legislation

29. In implementing the country-specific strategies referred to above, States should set verifiable benchmarks for subsequent national and international monitoring. In this connection, States should consider the adoption of a framework law as a major instrument in the implementation of the national strategy concerning the right to food. The framework law should include provisions on its purpose; the targets or goals to be achieved and the time-frame to be set for the achievement of those targets; the means by which the purpose could be achieved described in broad terms, in particular the intended collaboration with civil society and the private sector and with international organizations; institutional responsibility for the process; and the national mechanisms for its monitoring, as well as possible recourse procedures. In developing the benchmarks and framework legislation, States parties should actively involve civil society organizations.

30. Appropriate United Nations programmes and agencies should assist, upon request, in drafting the framework legislation and in reviewing the sectoral legislation. FAO, for example, has considerable expertise and accumulated knowledge concerning legislation in the field of food and agriculture. The United Nations Children's Fund (UNICEF) has equivalent expertise concerning legislation with regard to the right to adequate food for infants and young children through maternal and child protection including legislation to enable breastfeeding, and with regard to the regulation of marketing of breast milk substitutes.

Monitoring

31. States parties shall develop and maintain mechanisms to monitor progress towards the realization of the right to adequate food for all, to identify the factors and difficulties affecting the degree of implementation of their obligations, and to facilitate the adoption of corrective legislation and administrative measures, including measures to implement their obligations under articles 2.1 and 23 of the Covenant.

Remedies and accountability

32. Any person or group who is a victim of a violation of the right to adequate food should have access to effective judicial or other appropriate remedies at both national and international levels. All victims of such violations are entitled to adequate reparation, which may take the form of restitution, compensation, satisfaction or guarantees of non-repetition. National Ombudsmen and human rights commissions should address violations of the right to food.

33. The incorporation in the domestic legal order of international instruments recognizing the right to food, or recognition of their applicability, can significantly enhance the scope and effectiveness of remedial measures and should be encouraged in all cases. Courts would then be empowered to adjudicate violations of the core content of the right to food by direct reference to obligations under the Covenant.

34. Judges and other members of the legal profession are invited to pay greater attention to violations of the right to food in the exercise of their functions.

35. States parties should respect and protect the work of human rights advocates and other members of civil society who assist vulnerable groups in the realization of their right to adequate food.

International obligations

States parties

36. In the spirit of article 56 of the Charter of the United Nations, the specific provisions contained in articles 11, 2.1, and 23 of the Covenant and the Rome Declaration of the World Food Summit, States parties should recognize the essential role of international cooperation and comply with their commitment to take joint and separate action to achieve the full realization of the right to adequate food. In implementing this commitment, 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. States parties should, in international agreements whenever relevant, ensure that the right to adequate food is given due attention and consider the development of further international legal instruments to that end.

37. States parties should refrain at all times from food embargoes or similar measures which endanger conditions for food production and access to food in other countries. Food should never be used as an instrument of political and economic pressure. In this regard, the Committee recalls its position, stated in its General Comment No. 8, on the relationship between economic sanctions and respect for economic, social and cultural rights.

States and international organizations

38. States have a joint and individual responsibility, in accordance with the Charter of the United Nations, to cooperate in providing disaster relief and humanitarian assistance in times of emergency, including assistance to refugees and internally displaced persons. Each State should contribute to this task in accordance with its ability. The role of the World Food Programme (WFP) and the Office of the United Nations High Commissioner for Refugees (UNHCR), and increasingly that of UNICEF and FAO is of particular importance in this respect and should be strengthened. Priority in food aid should be given to the most vulnerable populations.

39. Food aid should, as far as possible, be provided in ways which do not adversely affect local producers and local markets, and should be organized in ways that facilitate the return to food self-reliance of the beneficiaries. Such aid should be based on the needs of the intended beneficiaries. Products included in international food trade or aid programmes must be safe and culturally acceptable to the recipient population.

The United Nations and other international organizations

40. The role of the United Nations agencies, including through the United Nations Development Assistance Framework (UNDAF) at the country level, in promoting the realization of the right to food is of special importance. Coordinated efforts for the realization of the right to food should be maintained to enhance coherence and interaction among all the actors concerned, including the various components of civil society. The food organizations, FAO, WFP and the International Fund for Agricultural Development (IFAD) in conjunction with the United Nations Development Programme (UNDP), UNICEF, the World Bank and the regional development banks, should cooperate more effectively, building on their respective expertise, on the implementation of the right to food at the national level, with due respect to their individual mandates.

41. The international financial institutions, notably the International Monetary Fund (IMF) and the World Bank, should pay greater attention to the protection of the right to food in their lending policies and credit agreements and in international measures to deal with the debt crisis. Care should be taken, in line with the Committee's General Comment No. 2, paragraph 9, in any structural adjustment programme to ensure that the right to food is protected.

STUDYING THE RIGHTS TO FOOD AND NUTRITION

ASBJN ElDE
SENIOR FELLOW & FORMER DIRECTOR, NORWEGIAN INSTITUTE OF HUMAN RIGHTS

The Universal Declaration of Human Rights adopted in 1948 was a document of great inspirational value, but the rights contained in it were vague, and nothing was said on who was to do what in order to secure the enjoyment of the rights contained in it. Therefore, a process was set in motion through standard-setting and studies, to clarify and elaborate the rights and to give them substance. Most of the rights gradually found their way into more elaborate instruments, but vagueness still prevailed, in particular regarding the economic and social rights contained in the Declaration.

I have been a long-standing member of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, often described as the 'think-tank' of the Human Rights Commission. Initiatives often start in the Sub-Commission; lead to action by the Human Rights Commission; and eventually move to the wider UN system as concrete resolutions.

As Special Rapporteur to the Sub-Commission on the Right to Adequate Food as a Human Right, I was asked to produce a study to clarify some of the rights regarding food and nutrition. Studying the rights to food and nutrition has been very different from an academic study. A Sub-Commission study is a process. While one person has the overall responsibility, it proceeds through consultations, contacts with agencies and other UN bodies, governments and NGOs. Completed in 1987, the study's main focus was on the clarification of States obligations in regard to the right to food and its relation to concepts such as food security. The framework of obligations in that report has since been widely accepted and have formed the basis of much of the work in the field of economic and social rights.

In August 1996, the UN Sub-Commission adopted a resolution in anticipation of the World Food Summit, which was to be held at FAO headquarters in November that year. The Sub-Commission in its resolution 1996/25 of 29 August 1996 expressed deep concern that more than 841 million people in developing countries did not have enough food to meet their basic nutritional needs. It therefore appealed to the upcoming World Food Summit to be held in Rome later that year to propose, inter alia, ways in which the right to food could be further clarified and implemented. By doing so, the Sub-Commission contributed to the initiation of a revived process of which this present UN ACC/SCN Symposium forms a part.

The appeal by the Sub-Commission was taken into account by the World Food Summit in November 1996. The Summit included in its Plan of Action objective 7.4 which, inter alia, invited the United Nations High Commissioner for Human Rights, in consultation with relevant United Nations and intergovernmental mechanisms, to better define the rights related to food and to propose ways to implement laws in order to realize those rights. Let me emphasize that the adoption and implementation of relevant laws is one of the most important constructive role agencies can play to help assure the realization of the right to food and nutrition. This recommendation by the Summit was endorsed by the Commission on Human Rights in its resolution 1997/8 of 3 April 1997.

This endorsement ignited the second stage in the process of developing and refining the rights to food and nutrition, and ways to ensure its implementation. In August 1997 the Sub-Commission requested that I update the previous study on the right to food and nutrition. Simultaneously, several NGOs initiated work on a voluntary code of conduct on the right to food. In parallel, consultations have been held under the auspices of the UNHCHR: one in Geneva in December 1997; the other co-hosted by FAO and held in Rome in November 1998. Indeed the present UN ACC/SCN Symposium serves as another consultation, more far-reaching in scope.

Human Rights Approach

A human rights approach to political, social or economic issues such as food and nutrition have a number of implications which must spelled out.

* Human rights have a normative, legal basis.

* All human rights contained in the Universal Declaration are interrelated and include civil and political rights as well as economic, social and cultural rights. One cannot select a single set of rights, because they are interdependent and indivisible.

* Human rights are obligatory for States, not optional; States should therefore incorporate these rights into their legal order. Appropriate legislative and other measures should be adopted.

* All rights, including human rights, require active and effective remedies, though not necessarily by the use of courts.

* Human rights require accountability and transparency, both domestically and internationally.

* At the international level, human rights are subjected to monitoring through a reporting process and a dialogue.

There is a growing recognition that the international community and its various institutions also have obligations, however vague, for the realization of the right to food. We are still in the early stages in the clarification of the scope and content of those obligations and determination of the appropriate duty-holders. To explore, recognize and accept those obligations at the international level form part of the process towards the development of global governance - a decentralized and multi-headed governance of which the international agencies here represented form vital parts. Human rights must be a major reference point for coordination.

Under international human rights law, primary responsibility to respect and ensure the rights rests with the State. Since human rights are obligatory, it is necessary to analyze the nature of the obligations of States. This brought the UN Sub-Commission to request me to prepare a study elaborating the content of the right to food and nutrition. My first study on this theme for the Sub-Commission was completed in 1987. The framework of obligations presented in that report has since been widely accepted and have formed the basis of much of the work in the field of economic and social rights. I identified three levels of obligations of States: the obligations to respect, protect and fulfil. Failure to perform any one of these three obligations constitutes a violation of the rights. Since then, many have proposed to include an intermediate level to "facilitate" human rights. This would, among others, subsume many kinds of development assistance. Whether this is done by using four levels of obligations, or by subdividing the obligation to fulfil into "facilitate" and "provide", is mainly a question of taste.

...there was the misconception that...States...have to be the provider, to feed the people...[this]has caused many States to be hesitant towards economic and social rights.

The introduction of these levels of obligation was a breakthrough in the debate on economic and social rights. Prior to this breakthrough, there was the misconception that if States recognize such rights, they have to be the provider, to feed the people. Such misconceptions have caused many States to be hesitant towards economic and social rights.

Now the task is to ensure that States make use of that framework and take the necessary steps at the national level to ensure for everyone the realization of the right to food. The international community must recognize its shared obligations to assist States and the local population, particularly in vulnerable countries, to establish a functioning human rights approach to food and nutrition. This involves States, international agencies and NGOs as representatives of the emerging global civil society, and it all forms part of what can become a more humane global governance in this age of globalization.

States are obliged under international law to formulate appropriate national development policies which give attention to the rights to food and nutrition. One aspect of the strategy should be to adopt a general framework legislation on the right to food and nutrition, and to review all sectoral laws to check their compatibility with the framework law.

International agencies and bodies have two major functions to perform in regard to human rights: monitoring and providing assistance. A division of labour is required in these respects. The monitoring function belongs in particular to the so-called treaty bodies. Dr Dandan, CESCR Chairperson, has explained how the monitoring works. Of particular importance for this symposium, is the role which specialized agencies and other UN bodies presently play in facilitating and assisting the realization of the right to food and nutrition. Human rights treaty bodies could establish cooperative links among themselves and with specialized agencies. Working relationships could be institutionalized between the CESCR and the Committee on the Rights of the Child on one hand, and with the UN ACC/SCN on the other, with a view to ensuring the flow of information.

The United Nations Development Assistance Framework (UNDAF) constitutes an important tool for strengthening inter-agency co-operation at the country level. Co-ordinated efforts should be maintained to enhance coherence and interaction between all actors concerned, including the various components of civil society, for the achievement of sustainable human development.

Attention needs to be given to the role of the Bretton Woods institutions¹. The CESCR and the chairpersons of the human rights treaty bodies have proposed the organization of a seminar with international financial and trade institutions. This will enhance dialogue and encourage consultations on a regular basis and prevent activities which would cause a further deterioration in the enjoyment of economic, social and cultural rights.

¹These institutions derive from the UN Monetary and Financial Conference that took place July 1-22, 1944, at Bretton Woods, New Hampshire, USA. The conference, attended by representatives of 44 nations, resulted in the creation of the International Monetary Fund (IMF) and the International Bank for Reconstruction and Development (the World Bank).

Concluding Remarks

Ensuring for all the realization of the right to food is fully within our possibilities, but it requires active State governance and active global governance. The human rights framework is the guidance and directive to such governance. That framework must be used now, in a deliberate and systematic way to ensure the realization of the human right to food and nutrition, along with all other human rights.

For further information contact Dr Eide at tel: +47 22 842 004; fax: +47 22 842002; email: [email protected]

HISTORICAL SUMMARY OF THE SCN WORKING GROUP
ON NUTRITION, ETHICS AND HUMAN RIGHTS

URBAN JONSSON

DIRECTOR, UNICEF REGIONAL OFFICE FOR EASTERN AND SOUTHERN AFRICA
CHAIR OF THE WORKING GROUP

The dedication of the Symposium of the 26^th SCN Session to the theme of a human rights approach to food and nutrition is evidence that human rights are taking hold in the development work of the SCN and its member agencies. The World Food Summit's (WFS) renewed focus on the right to adequate food, and the Secretary General's UN reform proposals for mainstreaming human rights have created an overall environment providing new impetus for bringing ethics and rights to the fight against hunger and poverty.

For more than twenty years, UN agencies have promoted and applied some kind of a basic needs approach. These approaches have often been criticized by economists as being too ambiguous and sometimes even unrealistic. Most economists have preferred a more utilitarian approach, including the idea of "investment in human capital". Ethical concerns in development have largely been the domain of religious and secular NGOs, predominantly motivated by charity considerations. An ethical approach to development means the recognition of fundamental rights of all members of the human family. These rights are articulated in existing international human rights instruments. The understanding of these rights has largely been confined to human rights institutions, especially to the UN human rights machinery. Interaction between the latter and the UN development agencies has been essentially non-existent.

Against the backdrop of the 1989 CRC, UNICEF introduced the topic of "nutrition and ethics" at the SCN's 19^th Session in Rome in 1992. A few months later the "Oslo Initiative" (UN ACC/SCN 1992) recommended that the SCN establish a task force on nutrition, ethics and human rights. At that time, hardly any other UN development agency saw the need for bringing an explicit ethical and human rights perspective to their programmes. With a view to filling this vacuum, the Working Group on Nutrition, Ethics and Human Rights (NEHR) was established at the 20^th SCN Session in Geneva in 1993.

The first two working group meetings (New York 1994, Accra 1996) were devoted to delineating the scope of the issues and charting a broad agenda for attention by the SCN, but above all, to building a constituency within the SCN. The working group then devoted its work to an in-depth examination of the most crucial and, still today, widely misunderstood question of the difference between a needs-based and a rights-based approach to nutrition, in conceptual as well as operational terms. The essence of this difference is that in the former, "beneficiaries" have no active claim to ensure that their needs will be met, and there is no binding obligation or duty for anybody to meet these needs. In contrast, a rights-based approach recognizes beneficiaries as active subjects or "claim-holders" and establishes duties or obligations for those against whom a claim can be held. This introduces an important element of accountability. Increased accountability holds the key for improved effectiveness of action and as such offers the potential for "value added" flowing from a rights-based approach. There are also important implications for the analysis of food and nutrition problems and for policy and programme planning and evaluation (Jonsson 1995).

The working groups's third meeting in Kathmandu in 1997 took place against the backdrop of the 1996 World Food Summit's milestone decision on the right to food (WFS 1996). For the first time since the adoption of the UDHR in 1948, a global summit challenged the international community to give operational meaning to the human right to adequate food - a challenge that the SCN simply could not ignore. The Chair of the SCN offered the High Commissioner of Human Rights SCN's co-operation in defining the content of the right to food, including assistance to the CESCR in the drafting of its General Comment on the Right to Food. This document would articulate the Committee's position on the subject. The SCN also offered to assist the Committee in its review and supervisory functions concerning State Party compliance by providing food and nutrition data, and by working with CESCR on the formulation of improved indicators.

Working group members participated in the substantive planning of an expert consultation in Geneva (2 December 1997) to advise the High Commissioner of Human Rights with respect to the mandate received from the WFS. Among the consultation's conclusions, which were brought to the attention of the Commission on Human Rights and ECOSOC, were the following:

· "There is considerable agreement on the conceptual content of the right to adequate food, including relevant health and nutrition aspects....The principal challenge lies in achieving consensus on the corresponding obligations and their operationalization."

· A basic analytical framework to define policies and programmes for the realization of the right to food exists.

· With regard to the implementation of the right to food, there is a clear division of labor between human rights institutions and development actors. At the international level this means that the UN human rights machinery, and notably the CESCR, is charged with monitoring the realization - and violation - of the right to adequate food, while the development agencies provide technical, financial and food assistance" (UN ECOSOC 1998).

Effectively mainstreaming human rights in all UN activities...remains a challenge of enormous dimensions.

The working group's fourth meeting in Oslo in 1998, in conjunction with the SCN's 25^th Session, reflected on several advancements on the human rights front within the UN system. Among them were the establishment of an ad hoc working group by the Executive Committee of the United Nations Development Group, chaired by the High Commissioner for Human Rights, with the mandate to incorporate the right to development in the UNDAF guidelines; and the response by NGOs to WFS Objective 7.4, notably the preparation of a Draft International Code of Conduct on the right to food and nutrition, an initiative by FIAN, WANAHR and Jacques Maritain International, now endorsed by over 800 NGOs.

The working group also contributed to the substantive planning of a second consultation organized by the High Commissioner of Human Rights and co-hosted by FAO in Rome in November 1998. Out of the large number of consultation results and recommendations, the following appear to have particular relevance for the work of the SCN (UN ECOSOC 1999):

· The consultation proposed a draft text defining the content of the right to adequate food (taken from the International Code of Conduct) as the basis for finalizing the clarification of the content of the right to food as requested by the WFS.

· In the final definition of the right to food, reference should be made to the right to food in emergency situations.

· The CESCR and ACC/SCN should institutionalize working relationships with a view to ensuring the flow of information between the two bodies.

· Collaboration on improved monitoring indicators should include a workshop of experts from development agencies and human rights treaty bodies.

· Agencies should develop an internal mechanism to ensure that their own policies and programmes do not negatively impact on the ability of States to execute their obligations with regard to the right to food.

· There is a need for training and the development of training support material for rights-based approaches to food, nutrition and development. UNHCHR's initiative for the dissemination of human rights training material throughout the UN system is a step in the right direction; this conclusion also reinforces the working group's capacity-building and Information, Education and Communication proposals.

· The proposal by the CESCR for a seminar with the international financial institutions to enhance dialogue and encourage consultations on a regular basis to prevent activities with negative impact on the realization of economic, social and cultural rights was supported.

Conclusion

Effectively mainstreaming human rights in all UN activities, as called for by the UN Secretary General in his 1997 reform proposals, remains a challenge of enormous dimensions. For the contribution that the SCN is called upon to make in the specific field of food and nutrition, the unfinished agenda remains considerable. The working group congratulates SCN for organizing this pathbreaking symposium under the sponsorship of the High Commissioner of Human Rights.

References

Jonsson, Urban (1996) - Nutrition and the convention on the rights of the child; in: Food Policy, Vol. 21, No. 1, pp. 41-55.

United Nations ACC/SCN (1992) - World Alliance for Nutrition and Human Rights, in: SCN News No. 8, pp. 14-16.

United Nations ECOSOC (1998) - The right to Food; Report of the High Commissioner for Human Rights. Commission on Human Rights, 54^th session, Item 5 of the provisional agenda, E/CN.4/1998/21, 15 January 1998.

United Nations ECOSOC (1999) - The right to food. Report of the High Commissioner for Human Rights. Commission on Human Rights, 55^th session, Item 10 of the provisional agenda, E/CN.4/1999/45, 20 January 1999.

World Food Summit (1996) - World Food Summit Plan of Action, Commitment 7, Objective 7.2. Rome.

Figure

UNDERSTANDING HUMAN RIGHTS APPROACHES TO
FOOD AND NUTRITIONAL SECURITY IN BRAZIL

DEMISE COSTA COITINHO
MINISTRY OF HEALTH, BRAZIL
(Presenting for the Valente et al. Working Group)

The right to food is a fundamental human right, as without food there is no right to life. People need food in a quantitative sense, however, this is not sufficient. The right to food also encompasses the right to eat according to one's cultural and social values, the right to safe food, and to correct information about food contents, healthy food habits and life styles. Also, food and nutritional security rests on two other pillars: health security, and adequate care practices. The multiple causality of food insecurity, and the indivisibility of human rights makes their governance the responsibility of all sectors of society: government, organised civil society and the business sector.

Brazil has embraced human rights in its newly formulated National Food and Nutrition Policy and in all derived programming, due to the social mobilization process of two independent socio-political forces: the food and nutrition security movement and the human rights movement. Partnership, inclusiveness and shared responsibility were the basis for policy formulation.

The Food and Nutrition Security Movement

To understand the foundations of the Brazilian Food and Nutrition Security movement we need to look back at our recent history. The early '80s, still under military rule, were marked by massive demonstrations for fair elections. The Federal Constitution was rewritten in 1988 and the electoral process became democratic. The first democratically-elected President after 20 years, who was deeply involved in corruption, was progressively cornered by State, private enterprise and civil society mobilization, spearheaded by the Movement for Ethics in Politics. A clear sign of growing political maturity was the impeachment of President Collor de Mello in 1992.

Following the impeachment in early 1993, the Movement for Ethics in Politics launched a call against hunger, poverty and social exclusion. A da Cidadania, Citizenship Action Against Hunger, Poverty and for Life, was created, and in a few months became the largest civil society mobilization in Brazil. More than 7000 local committees composed of groups of people varying from a handful to hundreds sprung up throughout the country. Citizenship Action, at one point, involved more than 30 million people (20% of the population) and opinion polls showed that close to half of the population of the country participated directly or indirectly in actions covering: food distribution, capacity-building, urban vegetable gardens, income and job generation projects, professional training, reintegration of street children into regular social life, support to the agrarian reform movement, literacy programmes and popular education. The business sector participated actively in Citizenship Action by donating, collecting and storing food and other essential goods. Large companies participated mainly through their private foundations, or by allowing their employees to participate in social activities on company time.

National Food Security Council - CONSEA

The mobilization of civil society around Citizenship Action led to the creation of a pioneering governance mechanism in late 1993: the National Food Security Council - CONSEA. Composed of 10 State Ministers and 21 representatives of society, this Council reported directly to the President. The Plan to Combat Hunger and Poverty was then launched by the President to co-ordinate federal government actions. Broad-based partnerships, social control, solidarity, and political, administrative and financial decentralization were sought.

CONSEA and Citizenship Action proposed measures to: distribute public food stocks to the food insecure population of approximately 32 million; generate jobs and income; accelerate agrarian reform; stimulate local development programmes; combat malnutrition and infant mortality; and combat corruption.

First National Food Security Conference

In 1994 Citizenship Action and CONSEA promoted the First National Food Security Conference, largely financed with government funds. Preceded by state level conferences it gathered more than 2000 delegates from urban and rural areas, from civil society, private sector and government. Until that time, the concept of food security was understood in very narrow terms. Citizenship Action's initiatives led the First National Food Security Conference to expand the agenda beyond hunger and poverty to include issues such as micronutrient malnutrition, consumers' rights for information, nutrition education, advertisement control, prevention of non-communicable diseases, food and nutrition surveillance, adequate health care and adequate child care. As a result, a broader concept of food and nutrition security was established in Brazil, however, this concept was not yet placed within the context of the global human rights framework.

Comunidade Solida

In 1995 the newly elected government discontinued CONSEA and created the Comunidade Solida Council within the Presidency, with the objective of fighting hunger and poverty within a national economic stabilization programme. This did not imply subordination of social objectives to macro-economic policies, but rather it was a form of considering the effects of these policies on the living standards of the poorer segments of society. Comunidade Solida developed a permanent process of dialogue and consensus-building between the State and representatives of diverse segments of society. A set of priority programmes was selected and conferred a "seal of priority" to guarantee their budget and provide support to their implementation.

The 16 selected programmes were grouped into the following areas: reduction of child mortality; promotion of primary level teaching; income and job generation; improved nutritional status for school children and poor families; improved housing and sanitary conditions; and strengthening of family-based agriculture. Comunidade Solida promotes the convergence of the selected programmes to more than one thousand poor municipalities. It established a network of interlocutors at federal, state and municipal levels to co-ordinate activities without the creation of parallel bureaucratic structures. Between 1995-1998, US$8 billion was applied to the priority programmes. The World Food Summit follow-up process is co-ordinated by Comunidade Solida, a special committee comprised of government, private enterprise, and civil society; and the foundations of a National Food and Nutrition Security Policy are being established.

Intent and Practice of Human Rights in Brazil

Brazil participated in the 1990 World Summit for Children (WSC), and has adopted a number of social goals related to children to be reached by the year 2000. It was represented at a number of international conferences that focused on development as a right, which clearly implies the right to adequate food. Brazil has a national equivalent of the CRC, called the Statute of the Child and Adolescent (1990). State and municipal councils on the rights of children and adolescents, and municipal guardianship councils were established. The former are concerned with the formulation of public policies based on a rights approach. The latter have a mandate to ensure respect for, and protection of, children and adolescents' rights. Other significant developments during the 1990's include the adoption of the principles of the 1966 Covenant on Economic, Social and Cultural Rights into national law in 1992.

...the concept of food security was understood in very narrow terms...[we needed] to expand the agenda...to include...micronutrient malnutrition, consumers' rights for information, prevention of non-communicable diseases... advertisement control... and adequate child care.

Merging Food and Nutrition Security and Human Rights - 1996

Leading up to the merging of food and nutrition security and human rights, Brazil signed a number of international agreements that deal specifically with food, health and nutritional security, starting with the Universal Declaration on the Elimination of Hunger and Malnutrition generated at the 1974 World Food Conference. Brazil was represented at the 1992 International Conference on Nutrition (ICN) that reaffirmed the WFC goals and incorporated additional goals related to national and household food security. In 1996 after a broad consultative process, the National Human Rights Programme was enacted. This Programme outlines actions designed to protect and implement human rights, particularly for specific population groups such as children, adolescents, women, indigenous peoples, old age persons and persons with disabilities, with the focus being civil and political rights. At the same time, the food and nutrition security movement started the process of preparation for the 1996 World Food Summit. It was clear at that point that the realization of economic, social and cultural rights was a means towards achieving food and nutritional security. The conceptual link between the two was then established.

Formulating the National Food and Nutrition Policy

In early 1998 the Ministry of Health launched a process of health policy formulation which addressed priorities established on the basis of epidemiological relevance, social demand and political needs. The National Food and Nutrition Policy (FNP) was the first to be considered. The principles of partnership (inclusiveness, shared responsibility and decentralization) were taken as the basis for the process of policy formulation. Moreover, the establishment of key partnerships during the process would provide the basis for programmes implementation, monitoring and evaluation.

A basic question was asked: Should a Food and Nutrition Policy encompass the entire Food and Nutrition Security Policy or should the FNP address the interface between a National Health Policy and a National Food and Nutrition Security Policy?

A first draft was conceived and forwarded to civil-society movements, private sector organizations, academic and scientific societies, workers unions, health professional associations, international organizations, and all governmental bodies (including the Ministry of Justice) related to the theme. A two-day meeting followed with intense group discussion to: build a common understanding of the process of policy formulation and its potential for the establishment of strong partnerships; to identify other key social actors not yet included; and to review the draft. Almost 100 delegates from all previously contacted social groups participated.

During those discussions, all the previous social processes that led to CONSEA, to the First Conference on Food and Nutrition Security and to Comunidade Solida were revived, and access to adequate food and nutrition was recognized by consensus as an universal human right. As a recommendation, the human rights approach was to be included in all policy guidelines. Under the leadership of Comunidade Solida, it was also decided by consensus that the new policy should include the health sector's responsibilities and interagency role within the broader context of a National Food and Nutritional Security Policy. The final version of the policy was then submitted to the National Health Council, the highest decision making level in the health sector, where the incorporation of the human rights approach was highly commended. This has translated into concrete gains in the quest for the implementation of economic, social and human rights. To guarantee these gains, civil society will have to continue its strong sociopolitical mobilization effort.

Two Examples of a Human Rights Approach: From Policy to Programmes

1. The Social Commitment for the Reduction of Iron Deficiency Anaemia

Iron deficiency anaemia is the most prevalent nutrition problem in Brazil and the first to be addressed after the FNP formulation. Inter-sectoral dialogue had been taking place in Brazil on this matter for many years without concrete results. All partners were now called for discussion and a matrix was formulated to clearly identify the roles of the different duty-bearers in human rights governance in relation to the right to be free from iron deficiency anaemia. As a result, all identified and negotiated obligations were stated in a social agreement with clear objectives, quantitative goals, and operational mechanisms called the Social Commitment for the Reduction of Iron Deficiency Anaemia, including the iron fortification of wheat and maize flours. It is expected that this agreement will soon be signed by the legislative and executive branches of the government, industry, civil society, scientific and academic institutions, and international organizations.

Having a human rights framework for the FNP does not automatically change the way managers think about the beneficiaries...[the beneficiaries] are not always seen as full citizens who have the same rights as more fortunate members of society.

2. Human Rights Capacity-Building Project for Food and Nutrition Programme Managers at State and Municipal Levels

Having a human rights framework for the FNP does not automatically change the way managers think about the beneficiaries of the different programmes. The beneficiaries of social programmes are not always seen as full citizens who have the same rights as more fortunate members of society. Only through a long process of incorporation of these policy principles into the norms and directives and into in service training programmes will it be possible to progressively change deeply rooted cultural and political attitudes.

A capacity-building project in human rights is being launched by the Ministry of Health directed to food and nutrition co-ordinators at state and municipal levels, responsible for programme implementation. The first phase took place in March 1999, and was directed to state coordinators; a national seminar is scheduled for September 1999; and similar activities are planned for public servants and civil society organizations. The ideal is that this capacity-building process will be incorporated into a well-designed Information, Education and Communication Programme.

Conclusions

The three areas of obligations in human rights governance are: to respect, protect, and fulfil basic rights. Understanding human rights governance as the responsibility of all sectors of society means it is firmly believed that these areas are not limited to the governmental sector, but equally apply to the others. If all sectors have the same obligations, it is important to examine inter-sectoral linkages and partnerships, at national, state, and local or community levels.

Brazil has progressed in integrating human rights with its food and nutritional security movements. The practical consequences of adopting such an approach were creating a common language based on ethics and social commitments, and raising the level of responsibility of the different sectors of society to reach shared goals. The empowering role played by civil society has meant that the State, though an important partner, is no longer seen as the sole actor in fighting social and economic exclusion. More frequently, civil society and the business sector are drawn into the process of implementing human rights and food and nutrition security strategies. A clear example is the recently negotiated Social Commitment for the Reduction of Iron Deficiency Anaemia. Could this partnership have been established without such a framework? Maybe yes, but the Brazilian experience has shown that it has helped to have the human rights approach. The question, however, still remains: What effects will this integration have, in the short-and long-term, on the food and nutritional security of everyone in Brazilian society?

The Brazilian case demonstrates the importance of the strategic role of social capital in the development process. The more society is organized as a myriad of institutions that respect, protect and fulfil human rights, and that act locally to assure the realization of these rights, the further Brazil can expect to progress on the road to food and nutrition security.

For further information contact Dr Coitinho, Food & Nutrition Coordinator, Secretariat of Health Policies, Ministry of Health, Esplanada dos Ministos, Bloco G, Edificio anexo, sala 206 B, Brasilia, OF Brazil; tel: 55 61 3152244; fax: 55 61 3223912; email; [email protected]

A NATIONAL FRAMEWORK FOR THE PROMOTION AND
PROTECTION OF THE RIGHTS TO FOOD SECURITY AND
NUTRITION: A CASE STUDY BY THE SOUTH AFRICAN HUMAN
RIGHTS COMMISSION

TSELISO THIPANYANE
SOUTH AFRICAN HUMAN RIGHTS COMMISSION

Post-apartheid South Africa...requires...a new 'Mandela' to assure the realization of economic, social and cultural rights.

After decades of struggle for human rights in South Africa, it would be impossible and immoral not to espouse a human rights-based approach in all of our actions, including nutrition interventions. Post-apartheid South Africa, faced with the devastating effects of colonization and apartheid, requires a new slogan and a new 'Mandela' to assure the realization of economic, social and cultural rights. This means that all people in South Africa should have adequate nutrition.

The violation of the right to adequate food constituted part of the legacy the new South Africa inherited from human rights violations brought about by the policies of successive colonial regimes in South Africa. While the effects of the past discriminatory policies on human rights in South Africa have been relatively well-documented, a brief summary of the situation regarding food security and nutrition that prevailed in South Africa in 1994 follows.

· In 1994 the infant mortality rate in South Africa was estimated at 49 per 1,000 live-born children (May 1998).

· An estimated 25% of South African children are reported to be malnourished. One in three African children are stunted. Approximately 16% of babies born in South Africa have low birth weight (South African Health Review Report 1996).

· Between 12 and 14 million South Africans are without access to safe water, and over 20 million were without access to adequate sanitation (Department of Health 1997-98 Annual Report 1999).

Regarding social indicators, 40% of households (equivalent to 53% of the population) accounted for less than 10% of the total consumption of goods; and 95% of those living in poverty were Africans (World Bank 1995).

It was against this background that the people of South Africa adopted a Constitution (Constitution of the Republic of South Africa Act 108 of 1996) that would lay down the foundation for the establishment of a society based on democratic values, social justice and fundamental human rights, and that would address some of the most devastating effects of the policies of the past regimes. In this regard, the Constitution provided for judicially enforceable economic, social and cultural rights and established appropriate monitoring bodies that will ensure the realization of these rights.

Constitutional Provisions: Rights Pertaining to Food Security and Nutrition

Section 27(1)(b) of the Bill of Rights in the 1996 Constitution provides that every person in South Africa has the right to have access to sufficient food and water. In addition, Sections 28(1)(c) and 35(2)(e) place a direct obligation on the State to ensure that every child, and every detained person, have the right to adequate food. Several other provisions in the Bill of Rights are indirectly relevant to the right to food. Section 25, for example, regulates ownership, tenure and access to land, which is the basic means of production of food. Sections 10 and 11 (right to human dignity and life) are indirectly relevant, because a substantive interpretation of these rights would extend to protect the same interests as the right to adequate food. In the last instance, Section 9 enshrines the right to equality and the prohibition of unfair discrimination, and is particularly relevant to the right to adequate food as it protects the right of equal access to food, particularly for disadvantaged and vulnerable groups. The state is required by Section 7(2) of the Constitution to respect, protect and fulfil the realization of all the rights in the Bill of Rights, including socio-economic rights.

Appropriate Monitoring and Enforcement Structure: the South African Human Rights Commission

In order to ensure that economic and social rights in the Bill of Rights are respected, protected and fulfilled, the 1996 Constitution provides for more specific powers and functions for the South African Human Rights Commission than the now-repealed 1993 Constitution. Section 184(1) of the 1996 Constitution states the functions of the South African Human Rights Commission are to:

· promote respect for human rights and a culture of human rights
· promote the protection, development and attainment of human rights
· monitor and assess the observance of human rights in South Africa
· investigate and report on the observance of human rights
· conduct research on the realization of human rights
· and provide human rights education.

To monitor and assess the realization of economic and social rights, Section 184(3) of the Constitution provides that: "Each year, the South African Human Rights Commission must require relevant organs of State to provide the Commission with information on the measures that they have taken towards the realization of the rights in the Bill of Rights concerning housing, health care, food, water, social security, education and the environment." The Commissions' constitutional mandate to monitor and assess the observance of human rights in South Africa, and in this context, the right pertaining to adequate food, entails a systematic analysis on how the provisions of each and every right in the Bill of Rights have been respected and protected.

The challenge for developed countries is also to facilitate these processes through the support for democratic processes in developing countries, a more rights-based role for the IMF and the World Bank, debt-relief and appropriate political and economic choices.

Activities of the Commission for the Protection of Economic and Social Rights

The Economic and Social Rights Report

The South African Human Rights Commission released its first annual Report on Economic and Social Rights in March 1999. Based on the information obtained from relevant organs of State, the report is not a comprehensive assessment of the State's success or failure in delivering social and economic rights. Instead, it is an initial examination of key national and local government departments and their understanding of their obligations to the realization of economic and social rights, including some of the measures they have adopted in that regard. The report had several objectives:

· to determine whether organs of State had taken measures to realize the economic and social rights in the Bill of Rights

· to establish whether organs of State understood their obligations to realize economic and social rights

· to ensure that national, provincial and local legislation, regulations and practices were in harmony with international human rights instruments; and to provide government and Parliament with proposals concerning the means for assuring the realization of these rights.

Focusing on the responses submitted by government departments, the report revealed much about the varying regard with which the departments held their human rights obligations. Some of the recommendations for the realization of socio-economic rights in South Africa included:

· compliance by relevant departments with socio-economic rights obligations under the Constitution, especially reporting obligations to the Commission

· development of a more comprehensive understanding of reporting obligations to the Commission and various human rights monitoring bodies created by international human rights instruments

· establishment of improved and more effective coordination between departments with overlapping mandates (For example, the right to adequate food is not addressed because none of the departments claim direct responsibility for the realization of this right. An inter-departmental mechanism should be developed to address this issue, e.g., a Ministry of Nutrition)

· provision of clear information on indicators and benchmarks of socio-economic rights that should take into account the provisions of the Constitution, the ICSECR and CRC

· provision of training and education of public officials involved with the realization of socio-economic rights

· adoption of special measures by relevant government departments in order to ensure the realization of socio-economic rights, especially those of disadvantaged and vulnerable groups (people with disabilities, female heads of households and elderly people)

· resources and institutional capacity support for the local government by relevant national and provincial government structures in order to enhance and ensure the critical role local government structures should be playing towards the realization of socio-economic rights

· and development of appropriate and effective legislation to ensure the realization of Constitutional obligations and provisions pertaining to socio-economic rights.

The oral testimonies made by ordinary people of their experiences of poverty, and written submissions by several NGOs on the plight of the poor people in South Africa, also informed the Commission's process of monitoring the realization of economic and social rights.

National Programme of Action (NPA)

The Commission was involved in conceptualizing and drafting the first South African National Programme of Action (NPA) for the realization of all human rights, including socio-economic rights, and in this context, the right to adequate food. The NPA, approved by the Cabinet in April 1996, embodies the South African government's policy on the respect and protection of children's rights. It identifies plans for the realization of children's rights by government departments based on the provisions of the CRC, the goals of the 1990 WSC, and the government's Reconstruction and Development Programme (African National Congress 1994). According to the NPA framework, the goals for the realization of the right to adequate food, especially for women and children, include:

· the reduction in severe, as well as moderate, malnutrition among children under five years old, to half of 1990 levels

· the reduction of the low birth weight rate (2.5kg or less) to less than 10% of all births

· the reduction of iron deficiency anaemia in women by one third of the 1990 levels

· the virtual elimination of iodine deficiency disorders

· the empowerment of all women to breast-feed their children exclusively for 4 to 6 months, and to continue breast-feeding, with complementary foods, well into the child's second year

· to ensure that all household members, regardless of age and gender, have enough food to cover their basic nutrition needs.

This means that all people in South Africa should have adequate nutrition.

International Consultative Conference on Food Security and Nutrition as Human Rights

The International Consultative Conference on Food Security and Nutrition as Human Rights, was organized by the South African Human Rights Commission on 25-27 March 1999.

The following are outcomes of the conference.

· The impact of macroeconomic policies on socio-economic rights, especially on nutritional rights should be further studied.

· There should be discussion on the awareness of the rights to nutrition and the Human Rights Commission should play an important role in this regard.

· There should be agreement on the framework for developing a common understanding of nutrition security with particular focus on food as a human right.

Conclusion

While there is a fair variety of policies, legislation, structures and programmes pertaining to the realization of economic and social rights and in particular, the right to adequate food, there are still many people in South Africa, especially black children and women, who do not receive basic nutrition and do not have access to sufficient food as required by our Constitution. There is also a need to review all of these existing measures including our macro-economic policies in order to ensure a more effective realization of the right to adequate food. An inter-departmental mechanism to promote this right is recommended by the Commission in its first Economic and Social Rights Report.

In conclusion, the South African Human Rights Commission, through its functions and powers, will play an important role in the realization of the right to adequate food. The Commission will continue to promote dialogue concerning the realization of economic and social rights, influence policy development around these rights, and continue to monitor and assess their realization. While the challenge in developing countries such as South Africa is to ensure the realization of these rights, the challenge for the UN agencies is to support these processes. The challenge for developed countries is also to facilitate these processes through the support for democratic processes in developing countries, a more rights-based role for the IMF and the World Bank, debt-relief, and appropriate political and economic choices.

African National Congress Reconstruction and Development Programme (1994) Johannesburg.

Department of Health 1997-98 Annual Report (1999)

Parow and CTP, Pty Ltd, Capetown.

May J (ed) (1998) Poverty and Inequality in South Africa

Report prepared for the Office of the Executive Deputy

President and the Inter-Ministerial Commission for Poverty and Inequality. Praxis, Durban.

South African Health Review (1996) Health Systems

Trust and Henry J Kaiser Family Foundation, Durban.

South African Human Rights Commission (1999) Economic and Social Rights Report Vol 1-6,25 March. World Bank (1995) Project for Statistics of Living Standards and Development.

The full text of this report, "The Role of the South African Human Rights Commission in the Monitoring and Assessment of the Realisation of Rights Pertaining to Food Security and Nutrition'' is a publication of the Research and Documentation Department of the South African Human Rights Commission. The Commission is presently seeking donors to produce the entire 400 page report. A 30 page extract of this report is available by writing to the UN ACC/SCN Secretariat, c/o WHO, 20 Avenue Appia, CH-1211 Geneva 27, Switzerland; or email [email protected]. For further information contact Mr Thipanyane, South African Human Rights Commission, Private bag 2700, Houghton, Johannesburg 2041, South Africa; tel: +27 11 484 8300; fax: +27 11 484 7146; email: [email protected]

RESPECTING, PROTECTING AND FULFILLING THE RIGHT TO
FOOD AND NUTRITION DURING THE ECONOMIC CRISIS:
THE INDONESIAN PERSPECTIVE

SOEKIRMAN
BOGOR AGRICULTURE UNIVERSITY, INDONESIA

The availability and stability of food prices (particularly for rice) for more than one decade had brought optimism that Indonesia was on its way to achieving universal food security as defined by the Indonesian Food Law of 1996: "...a condition in which every household has access to adequate food in quantity and quality, safe and affordable." The situation suddenly changed when the regional economic crisis began to affect Indonesia. Initiated by the El Ninduced drought in 1997 in the Eastern region of the country, Indonesia witnessed declining food availability, stability and access: signs of a threat to food security. Meanwhile the economic crisis had erupted into a political and social crisis during the first half of 1998. The chaotic situation in cities like Jakarta was triggered primarily by the worsening of the food crisis: the "disappearance" of rice and other basic foods (sugar, cooking oils, soybeans, baby foods); escalating food prices; weakened purchasing power; mass lay-offs; and unemployment. One consequence of this poverty and food insecurity has been increasing malnutrition. Since October 1998, the national press began to report increasing cases of severe malnutrition in children in hospitals and nutrition clinics. This surprised and concerned many nutrition professionals in Indonesia because for the past 25 years, marasmus and kwashiorkor had ceased to be problems of public health significance.

To validate the suspected deterioration in crisis-prone areas, some national and international agencies, such as the Nutrition Research Center, the Central Bureau of Statistics (BPS), Helen Keller International (HKI), UNICEF, RAND Corporation, and the World Bank independently initiated studies and re-analyzed existing data collected before and during the crisis. The results were controversial as some reports suggested that the social and nutrition impacts of the crisis was not as bad as expected (Frankenberg et al. 1998, Popell et al. 1999). Other reports disclosed evidence that malnutrition was indeed increasing (HKI 1998, 1999). HKI studies found that the number of women and children in Central Java, who did not eat meat, eggs, and drink milk was increasing. Childhood and maternal anaemia rates and vitamin A deficiencies had risen. The prevalence of maternal malnutrition, based on BMI (less than 18.5), in Central Java had increased by 3 percentage points (from 15 to 18%) between 1996-1998. A HKI study in Jakarta and Surabya showed that those living in urban slums - in terms of iron and vitamin A deficiencies in children, and BMI in women - were worse off from the crisis than those in rural areas of Central Java. The press still reports (as of 8 April 1999) infants and young children dying from severe malnutrition. There is still a significant number of people in Indonesia who are fighting for their right to adequate food.

The Government Response to Food Insecurity

Indonesian Foreign Minister Ali Alatas said, in his opening address of the Indonesia-European Union Workshop on Human Rights in Jakarta on October 28, 1998, "Human rights today were most under threat from the dreadful impact of the global economic and financial crisis which would inevitably expand poverty." During the 1980s Indonesia began a massive economic deregulation which led to strong macroeconomic performance on the one hand, but was not supported by a strong microfoundation on the other. The financial deregulation enacted in 1988 fueled massive capital inflows and a strong currency, but also created a trend towards large current account deficits. The weak micro-foundation consisted of policy, legal, and institutional failures from both the government and private sectors. Examples of the legal and institutional failures were a weak legal system due to poor enforcement, an unsupervised banking system, and generally weak and inefficient financial sectors. The combination of these failures led to the excessive practices of corruption, collusion, and nepotism in Indonesia well known as KKN (Korupsi, Kolusi, Nepotisme). The negative effect to the economy was a severe misallocation of resources. Unfortunately these failures could not be easily remedied under the transitional government during 1998-1999, because its main mandate was to prepare a clean and just general election in June 1999 (Feridhanusetyawan 1998).

Responding to the indications that nutritional status was at risk due to the economic down-turn, the Government of Indonesia launched several food policies and programs, including the Social Safety Net Program (SSN) to mitigate poverty and prevent further deterioration among children and pregnant women.

Ensuring Food Security

The first response was maintaining market control and keeping food prices low through food trade deregulation; encouraging local food production; and providing subsidies to those living in poverty by means of lower rice prices, special market operations for rice, and agricultural inputs. The deregulation policy allowed free trade for basic food commodities and abolished food import monopolies. With the new policy, the domestic decline of food production was partly compensated by food imports, including rice.

The authorities thought that NSS and TWIS were only relevant in times of scarcity....The system was abandoned. There had been no information system operating to prevent the casualties resulting from this current economic crisis and El-Ni drought.

The Social Safety Net Program

For Indonesia, the SSN was designed to protect the poor through:

· ensuring food security so that those persons living in poverty could fulfill their most basic human right, i.e. the right to adequate food (FAO 1998)

· creating employment to improve the exchange entitlement for those living in poverty, which is "...a set of all the alternative bundles of commodities that he/she can acquire in exchange for what he owns" (Sen 1982)

· developing small and medium enterprises to give opportunity to those living in poverty "to produce with the poor's own labor power and resources he/she can buy and manage" as an alternative to improve his/her exchange entitlement (Sen 1982)

· nutrition, and education, as the poor's social security benefit from the tax, etc. he/she paid (Sen 1982).

Social Protection

The main objective of this component is to assist those living in poverty to minimize their risk of irreversible losses in human potential resulting from malnutrition, lack of adequate health services, and loss of educational opportunities. To reduce the risks of potential losses due to malnutrition, there are three main nutrition activities being implemented as part of SSN:

· provision of supplementary feeding to children 4-24 months of age and to anaemic mothers
· revitalizing village nutrition centers ("Posyandu")
· and revitalizing the Nutrition Surveillance System (NSS).

The specific objectives of these activities were:

· to prevent the increasing trends of the prevalence of malnutrition among those people living in poverty due to the crisis

· to reduce the prevalence of low birth weight, wasting and stunting in children, and micronutrient deficiencies in children and mothers, particularly iron and vitamin A

· and to educate mothers regarding good infant feeding practices using either local/home-made supplementary foods or industry products.

Supplementary Feeding

A blended food of soya-rice-maize mix produced by the domestic food industry has been introduced for supplementary feeding of infants 4-12 months of age as a nutrition component of SSN. For children 12-24 months and malnourished-pregnant mothers, SSN provides funds for supplementary food to be locally purchased and cooked at home or at a community kitchen at Posyandu. For school children, food aid has been channelled through a special school snack program. The main objective of this program is to support the government's efforts to minimize drop-out rates in primary schools in low socio-economic areas through improved nutrition.

Revitalization of Posyandu

The Posyandu is a village community organization, established in 1980, and run by women volunteers who deliver basic nutrition services to children and mothers, with technical support from midwives, public health nurses, and nutrition professionals. In 1995 almost all of Indonesia's 65,000 villages had at least one Posyandu. In times of economic crisis, the Posyandu could play a vital role in defending children and mothers from the adverse effects. The government of Indonesia is committed to revitalizing the Posyandu as a component of the SSN.

Revitalisation of Nutrition Surveillance System

The Nutrition Surveillance System (NSS) was established in Indonesia in 1979 to watch for possible changes in availability and consumption of foods in a community, and to take immediate actions if the changes observed are suspected to endanger the health and nutrition status of the community (Soekirman and Karyadi 1995). By combining the timely warning and information system (TWIS) with the NSS, district heads could make decisions concerning people's food security. This system had been utilized by local authorities to find alternative solutions in dealing with food scarcity due to natural disasters, such as long droughts, so that there would be no detrimental effects on the health and nutritional status of the people.

In the 1990s when the country witnessed food abundance, resulting from the rice self-sufficiency achieved in 1984, people lost interest in the NSS. The authorities thought that NSS and TWIS were only relevant in times of scarcity and not in times of abundance. The system was abandoned. There had been no information system operating to prevent the casualties resulting from this current economic crisis and El-Ni drought, which brought an increase in child malnutrition. The authorities decided that it was worth reapplying the NSS nation-wide, and with this revitalization, more data on child nutritional status and on food availability at community and household levels have become more easily available.

...the ACC/SCN [should] make a strong plea to all UN agencies to add a State obligation to monitor the growth and development of their children.

Conclusions

From a human rights perspective, especially regarding the right to adequate food, the Government of Indonesia launched the Social Safety Net program to mitigate the adverse effects of the crisis. Aside from how effectively SSN has been implemented, this program has demonstrated the government's commitment towards the ICESCR Article 11(1) and (2) which states: "...upholds the basic right to adequate food...individually and through international cooperation. The States Parties will take appropriate steps to ensure the realization of the right..."

The most pressing problem facing SSN has been mounting concern that the program does not reach target populations effectively. This problem could have been avoided if regular anthropometric data were collected at least on under-five children and children of school-entrance age. I recommend that the ACC/SCN make a strong plea to all UN agencies to add a State obligation to monitor the growth and development of their children regularly as an indicator to realize Article 11(1) and (2) of the ICESCR.

To move the human rights-based approach further in Indonesia, we need to insure that people are not treated as passive recipients of these SSN services and are, instead, active claim-holders. We need to clarify the percentage of eligible persons who have, in fact, been reached by the SSN; to clarify the extent and the ways in which these citizens are entitled to these services; and to construct effective means for these claim-holders to submit complaints in the event they do not receive the services due them.

References

FAO (1998) Universal Declaration of Human Rights 50^th Anniversary. Booklet. FAO, Rome.

Feridhanusetyawan T (1998) Social impact of the Indonesian economic crisis. The Indonesian Quarterly, Vol. XXV/1:4.

Frankenberg T et al. (1998) Health, family planning and well-being in Indonesia during an economic crisis. RAND, Santa Monica.

HKI (1998-1999) Bulletin Crisis No. 1-4, Jakarta.

Popelle J et al. (1999) Social impacts of the Indonesian crisis: new data and policy implication. World Bank Mimeo, Jakarta.

Sen, A (1982) Poverty and Famines: An essay on entitlement and deprivation. Clarendon Press, Oxford.

Soekirman and Karyadi D (1995) Nutrition surveillance: A planner's perspective. Food and Nutrition Bulletin (June) 16(2):112, United Nations University, Tokyo.

For further information contact Prof Soekirman, Jl. Siago Raya, Komplek Bappenas No. A-1, Pejaten Barat, Jakarta 12510, Indonesia; fax: +62 221 7987 130; email: [email protected]

DISCUSSION

...COUNTRY CASES

Eileen Kennedy (AGN): Could you say more specifically how Brazil incorporated the private sector into its food and nutrition plan?

Dr Coitinho (Brazil): The private sector tends to view government as corrupt, and the government tends to view the private sector as a corrupter, therefore, all types of conflicts occur. When we invited the private sector to build a food and nutrition policy with us, we created a common language based on ethics and social commitment - that was the most important step. Thereafter, it was easier to call for specific actions like the reduction of anaemia. The private sector had a very clear role here because of food fortification, which made it easier to talk about obligations.

Sakiko Fukuda-Parr (UNDP): The Brazilian case seemed to describe a bottom-up process starting with civil society organizations (CSO) in 1993, and what we saw was the building of a political constituency; a demand from below to bring about changes in governments and legislation. The South African case seemed to be more of an engineering from above: the creation of the Commission, the rewriting of the Constitution without necessarily mobilizing or engaging CSOs from the bottom to ensure that there was a political constituency to achieve the level of enforcement and adherence desired by the Commission. Is that an accurate perception? Could you further discuss the importance of building from the bottom-up, the CSO involvement, and the role of political constituencies in order to achieve the national legislation and to ensure that the process is sustainable?

Mr Thipanyane (South Africa): It was definitely not a top-down process in South Africa. The Constitution was written by a significant amount of consultative process from the ground. The new government had no choice but to involve us, and what you are seeing now is that the government, due to harsh economic realities, is trying to pull away from these commitments on social rights. It is actually civil society pressuring government and the labour movement to think twice about these policies. When the new budget was presented this year it was quite interesting that the government gave extra money towards social spending without saying much - maybe it was due to the elections. We really have a bottom-up process in South Africa and a very viable civil society. It is the one thing that should keep us in line to a large extent. Even the Commission doesn't get much information from government, so we rely heavily on our linkages with civil society.

It is actually civil society pressuring government and the labour movement to think twice about these [human rights] policies.

Dr Coitinho (Brazil): In our case the process was bottom-up and this is the main lesson that we have learned. In discussing obligations, we actually felt that one of the State's obligations is to facilitate the mobilization of civil society because that is a key for sustainability.

Michael Windfuhr (FIAN): Are there counter forces visible in Brazil which are fighting against successful implementation of your strategy? For example, internal forces like big land owners, or external forces like the new adjustment package from the IMF which is forcing Brazil to cut down social budgets?

Dr Coitinho (Brazil): Of course there are counter forces. This is a political equilibrium and it is dynamic. The main counter forces are from different political and economical concerns and also due to scepticism. In terms of the economic adjustment policies, budget cuts were planned; we discussed the cuts, and because our reaction was based on all this very strong political discourse, we managed to keep our budget. At least I think it has certainly helped because even when implementing very severe economic adjustment policies you have internal room for decision-making.

Eileen Kennedy (AGN): Regarding short, medium and long term indicators of progress towards the human rights approach to food in South Africa and Brazil, what are some of the concrete benchmarks you are using to measure your success in reaching those goals?

Mr Thipanyane (South Africa): Each year we are required to request information from relevant organs of State on measures they have taken towards the realization of economic and social rights which includes the right to food and nutrition. From this information we evaluate the situation and send an annual report to parliament with recommendations. For example, in our first report we recommend that the government should establish a new ministry to oversee human rights pertaining to food security and nutrition. This resulted from the responses we received from various government departments; for example, the Department of Agriculture said they have nothing to do with the rights to food and nutrition; and neither the health nor welfare departments said anything about the right to food. The government itself, during our recent food security and nutrition conference in March 1999, admitted that there is no proper co-ordination among various government departments on the realization of these rights.

Using the reporting guidelines from the CESCR and CRC, and input from stakeholders, NGOs, governments and UN agencies, we will formulate new and effective questionnaires directed at government to improve indicators for our work. The rights to food security and nutrition are actually very central to the realization of socio-economic rights as a whole, and that's one important message I have received from this symposium.

Dr Coitinho (Brazil): Regarding indicators, one of our guidelines is the improvement of our food and nutrition surveillance system. We set up a data bank composed of 52 various indicators - including many nutrition indicators. We have good indicators on access to food, and percent of income spent on food for municipalities, for the national level, and for some state levels. We have now utilized food consumption surveys in seven large municipalities and are now surveying smaller municipalities. As part of our food and nutrition security surveillance system, we will try to collect these indicators periodically at household levels. We are now reviewing all the information in our data bank to try and understand it from a human rights perspective, and we are updating the first hunger mapping that we prepared as a result of our mobilization.

Ruth Oniang'o (AGN): How do you link to actual programmes? What accountability mechanisms do you have in place beyond the guidelines, surveillance systems, reports, data collection, etc.? Have you found that increased awareness causes your governments, civil society or NGOs to address emerging problems?

Mr Thipanyane (South Africa): The Commission does not link directly to programmes, but our government is committed to the process through their reconstruction development programme. The Commission makes sure that adequate measures are taken by government.

When it comes to increased awareness around socio-economic rights we have already established the Commission; and we have planned workshops on socio-economic rights this year to raise awareness. UNICEF and WANAHR assisted us with the conference we held in March. My department is helping to organize a conference on the impact of micro-economic policies on the rights of children, which will include the right to nutrition.

...what do we do about the environmental impact by multinationals? ... the role of the companies which manufacture breastmilk substitutes? Genetically engineered food?

We assisted the largest NGO coalition which helps eradicate poverty in Africa to hold hearings for victims of poverty. By hearing their stories of poverty, we were able to make recommendations to government. The government thought the results of this process would be used against them by political opponents. They reacted by conducting an impressive study on poverty and equality, and their report has had positive spin-offs, one of which was the allocation of additional funds towards poverty alleviation.

Dr Coitinho (Brazil): The accountability mechanisms we have implemented include a multi-sectoral group to follow-up on the World Food Summit goals. Our food and nutrition security data bank and the hunger mapping is part of the accountability mechanism. We firmly believe that there are State obligations and there are societal obligations. Society is composed of sectors like civil society, NGOs, the private sector and the international community; these sectors have to be duty-bearers.

Bertie Ramcharan (UNHCHR): You have both developed strategies in your own countries. Has this symposium been real and meaningful for you?

Mr Thipanyane (South Africa): I am a criminal justice lawyer and a human rights lawyer who is a newcomer to this process. This symposium has been very encouraging for me and I wish my government had participated in these proceedings. This symposium showed that a universal approach to these issues will benefit all of us. I see people from different countries and different agencies here, addressing the same issues, and that means that this work will only be enhanced.

I would like to comment on the issue of competing rights which is a problem and will be a problem. The State is required to take reasonable measures for the progressive realisation of the right to food on the basis of availability of resources, and we want to see our judiciary beginning to use this concept in addressing competing economic rights. We feel that our constitutional court actually failed to address this issue when the first socio-economic rights case came before the court: the right to emergency medical treatment. The constitutional court took a very narrow perspective and a pro-government position and simply said the government hasn't got the money. The Commission felt the court should have been more thorough in order to say a reasonable and appropriate choice had been made regarding the allocation of resources. The Commission intends to have a discussion with the constitutional court to express our views about this case.

On the issue of the private sector, our constitution applies horizontally and vertically, which means that the private sector, individuals and large companies are obliged to fulfil socio-economic rights to the extent that it is possible and appropriate. There is, to some extent, a diminishing role of the State and far more power is being passed to non-state entities which have tremendous power and impact. For example, what do we do about the environmental impact by multinationals? About nutrition and the role of the companies which manufacture breastmilk substitutes? Genetically engineered food?

Dr Coitinho (Brazil): This symposium has been a turning point. We have started to create a common language and this is absolutely key because human rights language raises social commitment, which is the reason why it's a very politically powerful language. As social commitment increases, the level of responsibility of the different social actors increases. The UN agencies here can help institute some form of accountability mechanism to move this process forward.

Regarding the private sector, we see society as a constant dynamic equilibrium of major social-political forces which have many points of conflict and negotiation, particularly the private sector (large companies) and civil society. The practical consequences of adopting a human rights approach is that you realize that all these forces have the same obligations; the responsibility must be shared.

Another key experience in this symposium was the discussion of tools, instruments, and indicators. We have to think about all this human rights legal framework and about specific programming tools.

To raise a final issue, I felt that a look at human rights with a gender perspective was missing and recommend that we further explore this area.

Lillian Marovatsanga (AGN): Professor Soekirman's remarks about corruption apply to Zimbabwe and many African countries; can Mr Thipanyane comment on corruption coming to South Africa?

Food security is always a political issue.

Mr Thipanyane (South Africa): I would say corruption is not coming to us - it has always been there. We have had a history of corrupt governments, but our government now has established this Commission to examine corruption, and the public sector is also looking into corruption. As far as collusion is concerned, we have a lot. The business world in South Africa, the media, and some opposition parties were all supporting our structural adjustment programmes, which led to cuts in social spending. Even the land distribution process is very costly because the government must buy back land at market prices - even though it was not sold to those landowners at market prices. There are many problems around these issues.

Joseph Hunt (ADB): With an election looming on 6 June in Indonesia to determine the political future in a time of great uncertainty, do you feel that the present political debate among the candidates is raising the issue of food and nutrition security as an issue of governance? If the answer is yes, do you think that a decentralized bottom-up process, as described by Dr Coitinho, is a possibility after the new party takes power to raise these issues to the national level?

Soekirman (Indonesia): Food security is always a political issue. The people always ask the government to provide adequate food (especially rice) at affordable prices; if this new government will not fulfil that obligation, I think the new government will fall. The bottom-up approach is the new reformation; we are giving everything to the local government and this also worrying. Nutritionists have been working hard for the past 30 years but I am now worried about the future because we don't know if nutrition is a 'felt need' in many parts of the country. From our past efforts we know there are people in many provinces who are highly aware of the value of nutrition; but there are also provinces that ignore nutrition and they may be more inclined to put more effort into building their infrastructure, or more effort in developing their economic rather than social sector.

Michael Toole (Macfarlane Burnet Centre, Australia): If the situation in Indonesia were to deteriorate, including the spread of the ethnic conflict that is ongoing in at least five places, what would you expect practically from UN organizations and the international community in order to support your interim government's commitment to the right to food?

Soekirman (Indonesia): First, I would expect the UN organizations and the international community to help us guarantee a fair election, and to ensure that the new government will do the right thing. Second, the UN agencies can provide needed assistance in terms of loans, grains such as rice, and other food. The international agencies have been doing a good job of providing assistance during the riots and financial crisis.

AsbjEide (NIHR): I am aware of some studies that show some ethnic groups had a degree of stunting which was dramatically higher than those groups who transmigrated from Java. I suspect that if one knew that, one could probably have predicted that some of the ethnic violence, which subsequently is flourishing, would have been the outcome at some stage. Did you have good information as to who were food insecure prior to the crisis?

Soekirman (Indonesia): Indonesia has been food secure for some time (regarding rice self-sufficiency) and because of this our data is outdated. We need to target food aid and this has become very difficult. I would recommend that every government be obliged to collect data on nutrition status regularly, especially for vulnerable groups such as children under five years and school age children. Indonesia is comprised of 1350 islands so it is difficult to map the problems.

TUTORIAL ON NUTRITION RIGHTS The human rights approach to food and nutrition is opening new frontiers in terms of human rights thinking, nutrition, policymaking, and legislation at every level. Many different ways of understanding these issues are beginning to converge, leading to more coherent ways of dealing not only with food and nutrition issues, but also with broader issues of development and of governance. To facilitate this process, the World Alliance on Nutrition and Human Rights (WANAHR) is sponsoring the preparation of a web-based interactive tutorial on Fundamentals of the Human Right to Food and Nutrition. The effort is being led by George Kent of the University of Hawai'i As stated in its opening section, the tutorial suggests how... ... individuals might formulate recommendations to adapt their agency's or their country's activities to conform more closely with the human rights framework, and thus contribute more effectively to the realization of human rights.... Thus, the orientation of this tutorial is to guide its users in working out the implications of the human right to food and nutrition in concrete situations. At a deeper level, the purpose of this tutorial is to help expand the base of shared understandings of human rights in general and the human right to food and nutrition in particular. The draft tutorial is available for use, and may be adapted to fit into various forms of workshops, courses, etc. The tutorial may never be completed, as it is being treated as a living document, one that is endlessly refined as thinking and practice on the human right to food and nutrition evolves. The current draft of the tutorial is located on the Internet: http://www2.hawaii.edu/~kent/tut/TitlePage.htm. For further information contact: Dr Kent, Professor & Chair, Department of Political Science, University of Hawai'i, Honolulu, Hawai'i 96822-2281 USA, tel 1 808 956 7536; fax: 1 808 956-6877, Internet http//www2.hawaii.edu/-kent; email: [email protected]

THE THIRD
ABRAHAM HORWITZ LECTURE

INTRODUCTORY REMARKS

RICHARD JOLLY, SCN CHAIRMAN

The Abraham Horwitz Lecture was established to honour Dr Horwitz, who was Assistant Director of the National Health Service in Chile from 1953-59, Director of the Pan American Health Organization (PAHO) from 1959-75, and our SCN Chairman from 1985 to 1995. Dr Horwitz presided over many of the achievements of this committee. He was recently hospitalized, but I am pleased to say that he is feeling better and retains his lively interest in the SCN. May I ask you now for a round of applause to send him our best wishes for continuing recovery. Dr Horwitz was always looking to the ideas of the next generation, and the intention of this Lecture is to promote Dr Horwitz' generous tradition of mentoring young talent The terms of the Horwitz Lecture require that it should be given by someone in the early stages of their career, and this year we reviewed 16 nominations before deciding on Dr Brigit Toebes. The title of this year's Horwitz Lecture is "Human Rights, Health and Nutrition".

Dr Toebes is, in one sense, at the early stage of her career, but when I read a "slightly longer" version of her abstract I saw that her career is already very well-launched. She is presently the senior researcher at the TMC Asser Institute for International Law in The Hague, Netherlands. She holds a PhD in international human rights law from the Netherlands Institute of Human Rights, and is the author of the book The Right to Health as a Human Right in International Law. Dr Toebes has co-founded, and also works with the International Anti-poverty Law Centre, an NGO based in New York. In 1997 she held an appointment as a visiting scholar at the Harvard School of Public Health. Her lecture is based upon material from her book, which aims to contribute to an improved understanding of the right to health.

HUMAN RIGHTS, HEALTH AND NUTRITION

BRIGIT TOEBES
SENIOR RESEARCHER AND RESEARCH COORDINATOR

TMC ASSER INSTITUTE FOR INTERNATIONAL LAW
THE HAGUE, THE NETHERLANDS

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. My particular expertise is in health as a human right. 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 also provide examples of what might possibly constitute governmental violations of these two human rights.

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 lawyers draw the broad frameworks for these rights, it is the nutritionists 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 Declaration in 1993 (UN 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 certain 'positive' actions, e.g., to re-organize 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, CEDAW, CERD, 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 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)).

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).

...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.

At a more enforceable level, several civil and political rights have proved important for the protection of people's health status. Much depends, in this regard, on the creativity of lawyers and others to apply these rights. Before the European Court of Human Rights, a right to environmental health protection has been recognized within the framework of the right to family life (inter alia Lopez Ostra case, Toebes 1999, p. 234). The case law that has been developed before the Indian Supreme Court is also noteworthy in this respect. On the basis of the right to life in the Indian Constitution, the Indian State and multinational corporations were held accountable for creating certain severe environmental health threats (Toebes 1999, pp. 210-219).

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 UN 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, however, 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, matrices, such as the one in Table 1, have been drawn containing the various obligations (Eide 1987, Coomans 1992, Toebes 1999).

Table 1.

Matrix: Tripartite typology of State obligations with regard to the right to health

	Health Care		Underlying Preconditions for Health
	Health Care	Family Planning and Pre- and Postnatal Care	Water and Sanitation	Environmental and Industrial Health	Physical Integrity
Respect	1) respect for equal access to health care including preventive services 2) no interference with the provision of health care 3) no interference with the provision of health care related information	4) respect for equal access to family planning services and pre- and post-nay care 5) no interference with the provision of such services by others 6) no interference with the provision of information on such services	7) respect for equal access to water and sanitation 8) no interference with the provision of water and sanitation 9) no interference with the provision of information on water and sanitation	10) abstention from environmental and industrial policies detrimental to health 11) no interference with environmental and industrial health-related information	12) abstention from harmful traditional practices* 13) no interference with information about harmful effects of such practices
Protect	14) adoption of legislation and other measures in order to assure adequate access to health care provided by third parties 15) adoption of legislation and other measures in order assure that adequate information on health care is provided by third parties	16) adoption of legislation and other measures in order to assure adequate access to family planning and pre- and postnatal care provided by third parties 17) assurance of adequate provision of information on such services by third parties	18) adoption of legislation and other measures in order to assure adequate access to water and sanitation provided by third parties 19) assurance of adequate provision of information on such services by third parties	20) adoption of legislation and other measures for protection against environmental and industrial health infringements by third parties, particularly in the field of environmental health 21) assurance of adequate dissemination of information of environmental health risks by third parties	22) adoption of legislation and other measures for protection against harmful traditional practices 23) assurance of adequate provision of information on such harmful practices by third parties
Fulfil	24) provision of health care services 25) provision of health care related information	26) provision of family planning services and pre- and post-natal care, and granting the latter services latter free of charge to clients if necessary 27) provision of information on such services	28) provision of water and sanitation 29) provision of information on water and sanitation	30) measures to ensure and promote a healthy environment 31) provision of information about environmental health issues	32) measures to ensure and promote freedom from harmful traditional practices 33) provision of information on such harmful practices

*Harmful traditional practices include practices prejudicial to the health of children and women, such as female circumcision or female genital mutilation; traditional birth practices such as dietary restrictions, preferential treatment for male children such as differential feeding patterns, and also forced feeding, early marriage, adolescent childbearing, teenage pregnancies, and ritual enslavement of girls. Source: Toebes 1999, p 258, pp. 314-315.

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).

The issues of international humanitarian assistance and the importance of fair trade cannot be ignored.

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 hearth 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 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 these 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 guiding principles for 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 health care services as well as clean drinking water and adequate sanitation

Given that 'health services' include the right to 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 Food

The ICESCR Article 11 explicitly states a separate and well-elaborated right to food. A similar analysis to that made of the right to health can be made of the right to food. This right has been examined in great detail by scholars and activists, including a comprehensive report by AsbjEide in his role as a UN Special Rapporteur on the right to food (Eide 1987). I will present a quick overview of this 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 - The elements that make up a 'core content' of the right to food have not been fully determined by scholars. The CESCR (UNCESCR 1990), however, has stated that:

...a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each right is incumbent upon every State Party. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs... is prima facie failing to discharge it obligations under the Covenant.

From this statement one may deduce that 'no deprivation of essential foodstuffs', at the very minimum, forms part of the core content of the right to food. What 'essential' foodstuffs are, of course, may be difficult to determine. A UN ACC/SCN document enumerated 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 to meet their nutritional requirements.

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

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 (UN ACC/SCN 1996, p. 74). These are the kinds of indicators that could, perhaps, be used to delineate what constitute 'essential foodstuffs' and accordingly that aspect of the core content of the right to food.

Guiding principles - Secondly, the guiding principles that were mentioned for the right to health are of crucial importance for the right to food. For the right to health, States were to safeguard the availability, the (geographic, financial and cultural) accessibility and the quality of the health services. Similar guiding principles may be useful to draw the framework of the right to food. According to Eide's 1987 report:

Food must be adequate in terms of nutritional quantity and quality, it must be safe from adverse alien substances, and culturally acceptable in the concept of prevailing food patterns (para. 33), [and] Access to food must be sustainable over time (para. 135) [and moreover, is to be] accessible in a manner which does not destroy one's dignity as a human being (para. 52).

Respect protect fulfil - And finally, 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).

The right to food may...be violated if governments prevent people from growing their crops by arbitrarily taking away their land...blocking of food transports, or by the poisoning of land by an oil-producing facility which renders the land barren. -CESCR 1999, p35

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).

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 the 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 an oil-producing facility which renders the land barren (CESR 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 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 make the necessary legislative and other measures in order to ensure the accessibility, availability and quality 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 1999, p. 36).

Fulfil - The obligation to fulfil concerns the positive obligation to make health and food accessible to everyone. Given its programmatic character, this obligation is difficult to pinpoint. It is difficult indicate exactly what States are required to do in order to comply with obligations to fulfil. Which health and food services 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 data from the UNDP and the World Bank.

Table 2.

Governmental health expenditures as percentages of GNP.

	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(1969)	3.3	6.3
Uruguay	6.8(1987)	2.5	4.5

(Source: ICESCR reports. UNDP 1995, World Bank 1993)

Before an assessment of the data in Table 2 is made, caution is required when comparing statistics from various sources. Firstly, almost all of the countries mentioned appear more positive regarding health expenditure than the UNDP and World Bank data shows. 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 services.

Taking into account their shortcomings, 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 the World Bank statistics, South Korea devoted only two percent of its GNP to health in 1991. 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 (Table 3).

Table 3.

Governmental health and defense expenditures as a percentage of GNP.

	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. Work) Bank 1993, pp. 258-259)

These statistics show 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 AH" 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).

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 principle of the geographic, financial and cultural accessibility to health services. 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, women, children, or people living in remote, rural areas. For example, as mentioned in a UN ACC/SCN report:

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 (UN 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 diverse population groups.

Implications for UN Food and Nutrition Specialists

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 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.

Whether the UN itself can be held accountable for human rights violations is a question that scholars have not yet resolved. 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 (UN ACC/SCN 1996, p. 49). UN agencies have an important role to play in poverty alleviation. They may provide development aid and assistance to governments to establish programs for the improvement of people's health and nutritional status. 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. The UN should seek to hold States accountable for non-compliance with their specific human rights obligations in this regard. The UN, as funding agency, humanitarian aid organization or political actor, also has its own set of international obligations in order to assist States to ensure the realization of the human right to food and nutrition.

References

Coomans APM (1992) De internationale bescherming van het recht op onderwijs [The International Protection of the Right to Education], Stichting NJCM Boekerij, Leiden.

Center for Economic and Social Rights (CESR) (1999) CESR Guide to economic and social rights advocacy (draft).

Dr J and Sen A (1989) Hunger and Public Action Clarendon Press, Oxford.

Eide A (1987) The New International Economic Order and the Promotion of Human Rights. UN Doc. E/CN.4/Sub.2/1987/23, 7 July 1987.

Toebes BCA (1999) The Right to Health as a Human Right in International Law Intersentia Law Publishers, Belgium.

United Nations ACC/SCN (1996) How Nutrition Improves UN ACC/SCN, Geneva.

United Nations Committee on Economic, Social and Cultural Rights (CESCR) (1990) First periodic report of Algeria. UN Doc. E/1990/5/Add.22: para. 220.

United Nations CESCR (1994) First periodic report of the Philippines. UN Doc. E/1986/3/Add.17, 15 September 1994: para. 667.

United Nations CESCR (1991) General Comment No. 3, The Nature of States Parties Obligations. UN Doc. E/1991/23 (Fifth session, 1990).

United Nations CESCR (1990) Initial report of South Korea. UN Doc. E/1990/5/Add.19: para. 405.

United Nations CESCR (1989) Representative of Tunisia. UN Doc. E/C.12/1989/SR.9: para. 63.

United Nations Development Program (1995) Human Development Report Oxford University Press, New York.

United Nations Human Rights Committee (1985) General Comment 6[16] (Article 6), para 5. UN Doc. CCPR/C/21/Rev.1, HRC Annual Report 1985, Annex VI (pp. 162-163).

United Nations World Conference on Human Rights, Vienna Declaration and Programme of Action. UN Doc. A/CONF. 157/23, 12 July 1993.

Van Hoof GJH (1984) The Legal Nature of Economic, Social and Cultural Rights: a Rebuttal of Some Traditional Views. In: Alston P and Tomaševski K (eds.) The Right to Food, From Soft to Hard Law SIM, Utrecht: 97-111.

World Bank (1993) World Development Report 1993, Investing in Health Oxford University Press, New York.

World Health Organization (1946) Constitution of the World Health Organization. (14 U.N.T.S., pp. 186, Basic Documents WHO, 32st ed. Geneva, 1981), 22 July 1946, entry into force: 7 April 1948.

World Health Organization (1978) Primary Health Care, Report of the International Conference on Primary Health Care. WHO, Geneva/New York. 'Health For All' Series No. 1.

The author is indebted to Maria Green, Director of IAPLC (International Anti-Poverty Law Center, [email protected]), for her assistance with this paper. For further information contact Dr Toebes, TMC Asser Institute, PO Box 30461, 2500 GL The Hague, The Netherlands; tel: +31 703420344; email: [email protected]

COMMENTS

...THE DR ABRAHAM HORWITZ
LECTURE

Richard Jolly (SCN Chair): Thank you very much Dr Toebes for your interesting and relevant presentation connecting human rights issues to the right to food and nutrition. It is very exciting to think that you will be in a position to carry these ideas forward. I will give the final word to Graeme Clugston, Director of the Nutrition for Health and Development Department at WHO, but I now solicit questions, comments and discussion from the participants.

Ricardo Uauy (AGN): Taking into account that this legal framework is being developed, how do you envision that this will be enforceable, because a country level issue is 'Who will be accountable, who will be responsible?'.

Peter Matlon (UNDP): Could you focus your response to Ricardo's question on infractions that occur at the domestic level and then at the international level, and what forms of enforcement are available?

Dr Toebes: Regarding the enforceability of economic, social and cultural rights, this is a matter that has not been elaborately addressed in this symposium, and in my lecture I focussed on explaining the normative content of these rights. We need the input of legal practice. Legal practitioners could, by applying these rights before the courts over and over again, seek to get further clarification of these rights. That is one way to get more clarification in this regard at the national and international level; but at the international level this is quite difficult because there are hardly any international complaints being pursued in force for these human rights. A 'limited complaints' procedure is now before the European Social Charter which is a promising development. In additional to legal practice, I think the input of NGOs to lobby governments for rights is necessary.

Urban Jonsson (UNICEF): When you showed the table with the three types of obligations, you limited the respect function to State abstention. In my mind that should also include positive action by the State. I would like your comment.

Dr Toebes: I think it's very difficult to strictly delineate the three different types of obligations: respect, protect, fulfil, and to a certain extent they may overlap. You may find some obligations to respect as well as obligations to fulfil. For example, if you exclude a certain population group from medical services, shouldn't you say that it is actually an obligation to fulfil because you should actively provide the services?

Urban Jonsson (UNICEF): Also, a question on conflicting rights which is discussed now in my region, Eastern and Southern Africa, is that on one side we can argue that new-born children have a right to know whether their mother is HIV positive, and on the other side the mother has a right to decide not to be tested. Would you address this issue?

Dr Toebes: A dangerous aspect of the right to health is that it is interpreted as a means to take certain public health measures that may inflict upon people's civil and political rights, like their right to physical integrity. We must always find a balance in this regard.

Richard Jolly (SCN Chair): Would you comment in the particular case of HIV/AIDS when there is a need to provide a child with special support if the mother is HIV positive, but the mother does not wish to be tested.

Dr Toebes: Perhaps in that situation the balance would go into the other direction and the child would have a right to access to services needed.

Hartwig de Haen (FAO): My question relates to what lawyers have to say about State obligations verses obligations at lower levels. I assume access to health or food is not possible due to a person's poverty. To what extent do criteria exist, that help the State refer first to lower levels such as the individual, the family, and the wider community to use opportunities in terms of property, work, etc. before the claim is expressed to the State. This type of delineation of obligations is very important for practical implementation of a system that ensures the State will fulfil its obligations.

Dr Toebes: It is important and we should look at the responsibilities of individuals. If we move into this area now, however, it can be dangerous because States may do away with their responsibilities by claiming that individuals also have obligations.

Tom Marchione (USAID): The obligations framework seems to be clearer but we lack sufficient illustration of its meaning and application. When we look at the violations in terms of the right to food and the persistent malnutrition that exists across the world, which of these three dimensions is most important in rectifying the situation? Is it the lack of respect by governments? Lack of protection or neglect? Is it the lack of action by third parties? Or is it the lack of fulfillment and facilitation? The lack of really developed resources? This is important because the resource question keeps coming up as a constraint. If it's the first two it becomes less of a constraint. It is also important in terms of mobilizing other actors who have financial and institutional resources to do something about it.

Dr Toebes: You cannot really say that one of the obligations is more important than the others. In terms of enforceability, however, I think the obligation to respect is particularly successful because it requires that States abstain from action, which is rather easy to formulate and also to justify. In terms of successful obligations I think we should first focus on the obligation to respect.

Virginia Dandan (CESCR): How do you perceive, or do you perceive, a role for the CESCR to address these issues of resources at the international level, particularly because it is a good forum for States parties to address these issues in their own particular territories. Could you also make a concrete connection regarding the possibility of cooperating with other agencies present here today?

Dr Toebes: The role of the committee is extremely important, has been extremely important, and will be more important in the future as these general comments on food and health are adopted. The CESCR does need input from other agencies. Representatives from agencies such as WHO, FAO, UNICEF, and UNDP, should be present during committee sessions offering their specific expertise.

Graeme Clugston (WHO): I would like to say thank you to our speaker, Dr Toebes. An expert in international human rights law and health, you ably applied specific human rights concepts to the area of nutrition. On behalf of the ACC/SCN we thank you for your dedicated work which will enable us to implement a human rights approach in our programmes. Many of us who remember Dr Horwitz and knew him well, will recall how during his period as ACC/SCN chair between 1985-95, he went out of his way to encourage young, visionary, thought-provoking, refreshing talent. Dr Toebes' lecture fulfilled all of these things. We heard a very rigorous and thoughtful analysis of the human right to health; the core elements of primary health care, the underlying preconditions for health and their accompanying guiding principles; and the parallel track regarding the right to food, and the resulting obligations upon member States. This question and answer session indicated how thought-provoking and interesting your lecture has been for us. Dr Toebes has done an excellent job in this, The Third Abraham Horwitz Lecture.

THE RIGHT TO HEALTH AS A HUMAN RIGHT IN INTERNATIONAL LAW

BRIGIT CA TOEBES

The international human right to health as one of the economic, social and cultural rights is firmly embedded in existing human rights instruments. There is, however, little understanding of the contents and significance of this specific right. What exactly are individuals entitled to on the basis of the right to health and what are the resulting obligations on the part of States? To what extent is this right susceptible to judicial review?

This book aims at contributing to an improved understanding of the right to health. It addresses its current implementation practices by treaty monitoring bodies by providing an extensive evaluation of reporting practices. In addition, it addresses the justiciability issue by giving an elaborate description of international and national case law by judicial and quasi-judicial bodies. On the basis of these findings it outlines the content of the right to health and describes the resulting obligations on the part of States.

Figure

This study is based on materials derived from various sources: United Nations, including the World Health Organization, NGOs, national and international case law, and human rights doctrine. It seeks to contribute to the international debate about the character and significance of economic, social and cultural human rights in general and it tries to substantiate the interdependence and equality of all human rights.

1999; ISBN 909 5095 057 4; Intersentia Law Publishers, Churchilllaan 108, B-2900 Schoten (Antwerpen) Belgium; tel: 32 3 680 1550; fax: 32 3 658 7121; email: [email protected]

The Substance and Politics of a Human Rights Approach
to Food and Nutrition Policies and Programmes

SYMPOSIUM DISCUSSION

Richard Jolly (SCN Chair): Mrs Robinson and Dr Brundtland both mentioned the ACC, the millennium meeting, and the Secretary General's mandate which stated that human rights was such a critical issue of the reform of the UN. As the UN ACC Sub-Committee on Nutrition, bringing together 17 agencies, the bilaterals, the NGOs, and the AGN, what could we do in the area of human rights within our agencies to feed into the ACC process and into the millennium meeting?

Dr Brundtlund (WHO): Examine the key elements of a human rights approach; discover which are most useful in reaching our goals. It is by using a combination of instruments that we can reach more political decision-makers and create a more consistent mission statement. If the 17 agencies focus on very different perspectives and do not have a very clear common message, people become confused.

For example, in two agencies such as WHO and UNFPA, who work in reproductive health issues, family planning and all other health perspectives, there should be very little difference in the advocacy, the messages, and the focus. A review of the documents, however, reveals that we have not formulated a common perspective or a common language. The examples becomes worse as we go further away from agencies which deal with closely related issues. The call is to have a more consistent voice in order to be heard by the people around the world.

...in two agencies such as WHO and UNFPA...there should be very little difference in the advocacy, the messages, and the focus...[but] we have not formulated a common perspective or a common language.

Mrs Robinson (UNHCHR): I agree with Gro and would add that it is important to become familiar with the human rights instruments, and indeed with the work of the CESCR - and that is where our office can play a role. We can provide support, and are increasingly aware of the importance of training in human rights, the components of training, and being included in the training of all who work within the UN system. We are addressing issues of availability and accessibility, using our web site and other means to ensure that we do integrate the work of the CESCR, and the Committee on the Rights of the Child.

It is important to integrate children's issues into a human rights context. Future opportunities to provide a strong input of nutrition include the dialogue on the Commission on Human Rights, the ECOSOC dialogue, and also the ECSEA meeting, which doesn't normally look at a convention in that particular context - ECSEA examines economic strategies, particularly microeconomic policies affecting the rights of children - and there will be a two-day seminar in September on the rights of the child.

Arne Oshaug (Norway): Why is food and nutrition as an example of economic, social and cultural rights an important and interesting issue for the High Commissioner when you must deal with all the other burning civil and political issues?

I want to bring about a balance on being strong on both sets of rights...civil and political rights...economic, social and cultural rights.

Mrs Robinson (UNHCHR): It is fundamental to my approach as High Commissioner. I view human rights in the broad context and I want to bring about a balance on being strong on both economic, social and cultural rights. I am determined to advance the right to development which is expressly in my mandate as High Commissioner. One early opportunity I will have to bring the approach of this otherwise be potentially a narrower human rights context, will be in Mauritius later this week where the first all African Conference on Human Rights will be held. Now to a fault in the past, these kinds of issues would not be on the table. I think it is vital that they are very much on the table and indeed I will be very happy to circulate Gro's speech and to invite these African ministers for justice and human rights to mainstream human rights in their governments, and to bring home the extent to which human rights are very relevant to help nutrition development. So when you ask how important, my answer is - fundamentally important.

Arne Oshaug (Norway): Dr Brundtland, what difference will it make for WHO to have a human rights approach when it comes to collaboration with other UN agencies, and what kind of advice and interaction will you have with member countries?

Dr Brundtlund (WHO): The importance of the human rights approach for WHO is that we will not only be dealing with ministers of health who are our key partners, but also now with finance ministers, justice ministers, foreign ministers, and ministers from other sectors from whom the health minister will seek support. Just a week ago I met with the Minister of Human Rights from Morocco and he was talking with me about health perspectives in his country, which he is pursuing as a human rights minister. We must open the doors to other ministries in order to make health ministers more effective to lobby for nutrition issues.

If you add the rights approach to the more general health arguments, a broader understanding of the issue will be created. For example, in countries where children are not even immunized with the basic vaccines which are so cost-effective and so protective of human life; or iodine deficiency in elderly populations; we need to open the doors to others as well as the health minister, who is often a weak minister in many countries, and sometimes not even part of the cabinet.

Ricardo Uauy (AGN): With your experience not only as heads of agencies but as past political leaders of your countries, how do you envision that the human rights approach can be taken to a country level, considering the fact that in most countries where malnutrition occurs, other human rights, including political rights are restricted? As political leaders you understand that change is facilitated when you have communities demanding those rights, how do you envision the UN system empowering civil society?

Mrs Robinson (UNHCHR): I think this is a very important question, and I emphasize, that the human rights approach does take place at the country level. I have been impressed during my visits with country level leaders of the UN family who are increasingly implementing a human rights approach. That observation is particularly pronounced where a UNDAF programme is in place. The UNDAF guidelines obviously have a strong human rights component, but there is that other dimension which you have brought forward very appropriately: the importance of ensuring and that civil society is both aware of, and supportive of this approach. My role as High Commissioner in visiting a country would be not just to link with the UN family and meet government representatives, but very importantly, to meet the civil society, the NGO community, women's groups, and with those involved in a range of issues in order to strengthen their resolve and approach, help them with their own advocacy and understanding of these issues, and to help them to feel that they are supported. This is a very important component and again, I think it is good that this SCN symposium coincides with the Commission on Human Rights 55^th Session. It is a time when many NGOs come to Geneva to participate in order to make their voices known and to express their fears. Hopefully, your work will be integrated more and will help them because of this opportunity.

Countries request us to do much more but without donors and partners we are unable to do so....this is what makes this SCN so meaningful...to make our work more efficient, avoid duplication and improve effectiveness.

I also place great emphasis on the importance of the institutional capacity being developed, and I welcome the growth in national human rights commissions. Indeed, we are organizing a round table for national human rights commissions during this 55^th session of the commission so that they can compare best practices to create an awareness of social and cultural rights, including the right to food and nutrition. Your help would be central to those issues, so I think we are beginning to build institutional capacity as well as trying to make sure that the civil society is supported.

Dr Brundtlund (WHO): I support what Mary said regarding the importance of the UNDAF process and that, at the country level, agencies and NGOs should begin to speak more with one voice and support each other in their efforts. To the extent that this occurs at the country level, we will gain the advantage of spreading the best practices and messages.

Carlos Villan Duran (UNHCHR): Specifically, how could the cooperation between our office and FAO be strengthened in the future?

Hartwig de Haen (FAO): I have no additional proposals other than to keep the momentum from this symposium. We should continue to work on the proposed framework legislation, hold awareness-raising seminars, and analyze the various steps of the matrix approach which distinguishes between respect, protect, facilitate and fulfil. If UNHCHR cooperates with us in our work programmes to introduce more concrete substance regarding human rights, I think we will be able to significantly advance in this area.

AsbjEide (NIHR): When I started the work on the right to food in 1982, we did not hear the many supportive voices that we are hearing here today. I was worried that FAO had forgotten quite a bit of the commitments that they, themselves, pushed into the Covenant in 1960-61 - and very valuably so. But I am pleased with the statement which has just been made by Dr de Haen. Indeed, as a participant in the Rome consultation, one of the issues I strongly encouraged was framework legislation. I think it is a major breakthrough, and if FAO, with its very substantial experience, can encourage States to seriously adopt this, it will be an extremely significant contribution. Is it possible to have this philosophy really permeate the FAO and the other Rome-based organizations so that it will not be used as noncommittal rhetoric to feel good, but a substantial action? Does FAO have the authority and the resources to really bring this about?

Hartwig de Haen (FAO): You say that we had tentatively forgotten the right to food. I am not sure you are right. In any case, we are trying to put into practice what was formulated as a commitment in the World Food Summit - whether we will go from words to deeds and whether it will be possible to have the philosophy really permeate our programmes remains to be seen. I don't want to raise expectations too high, I only want to assure you that what I said was not just a note that I scribbled on a piece of paper this morning; this came out of a deliberate consideration not only in our legal office but with many others in FAO, so the intention is there, and jointly, I hope that gradually we will work towards this end. I have also tried to say in my statement that I see difficulties on the side of governments: being reminded of obligations may be more difficult for them to accept than just receiving a recommendation - the work ahead of us is still enormous.

Do we have the authority to do so as FAO? I think we have. We have the authority to work with the HCHR to further clarify what the right to food means analyzing, studying and proposing solutions.

...is [it] historically correct to say that the World Bank has been instrumental in making it very difficult for governments to respect, protect, facilitate and fulfil their obligations?

Lillian Marovatsanga (AGN): I visited the very impressive FAO complex in Rome last year with SCN Chairman, Dr Richard Jolly. When we spoke to the different divisions and departments within FAO, we were shocked at the number of well-funded projects that appeared to have no nutrition component. We also wanted to discover just how much interagency collaboration was occurring within the agencies themselves and found very little. Would you address this issue?

Hartwig de Haen (FAO): I listened very attentively to the Chairman this morning when he quoted from his agency visits, and then I leaned back relieved because I thought none of these anonymous quotations was from FAO - but now I have my doubts. I think we should be a bit careful when we hear people say 'I am not involved in nutrition'.

They are involved in nutrition, even in analyzing the cereals market, in Codex Alimentarius, and also when they work on overall production. Don't think they are not involved in nutrition. But there is a division of labour in agencies. Some are not directly working on nutrition itself. But fairer trade, and trade that respects standards, and that avoids unfair interventions or protectionism is, in the end, beneficial for nutrition. It is unrelated to nutrition. That is not to say that we are doing enough - we certainly have to find more support for nutrition-related work, both in the standard setting machinery and in the field where we promote nutrition education, nutrition-related home gardening or specifically targeted programmes for women and children. Countries request us to do much more but without donors and partners we are unable to do so. I think this is what makes this SCN so meaningful - we work together to make our work more efficient, avoid duplication and improve effectiveness.

The Bank has learned a great deal, partially by the exhortation of others, to examine very carefully how structural adjustment fits in with the other investment type lending activities of the Bank.

Arne Oshaug (Norway): Mr Lewis outlined the importance of strengthening the knowledge and the competence of human rights within UNICEF. We have not mentioned the 'brain drain' today, but we know that competent people in government sectors in many countries are zapped into becoming international civil servants and that might be a big problem for countries in addressing these issues. Is UNICEF helping governments to enable themselves to fulfil their obligations?

Urban Johnson (UNICEF): In the human rights discussion we always identify human rights as a relationship between subjects and objects, objects with obligations to respect, protect, facilitate and fulfil, primarily by the State. If I examine the work of the World Bank in Africa over the last 10-20 years, which I know reasonably well, would you agree with me that it is historically correct to say that the World Bank has been instrumental in making it very difficult for governments to respect, protect, facilitate and fulfil their obligations? Meaning that repeatedly, constraints have been created such that people in those countries have not had their rights fulfilled. In concrete terms, structural adjustment factors have constantly created difficulties and constraints for people to feed themselves, their access to health services, and their access to education. If that is so, does this mean we are seeing a fundamental change in the World Bank's strategy?

The way in which statistics are organized may be part of the violation.

Peter Matlon (UNDP): In his opening remarks Richard Jolly made reference to past policies having balanced economic growth while the lives of people are being unbalanced. Clearly we have seen the short and medium term impacts of many structural adjustment programmes as having unbalanced the lives of people, especially from a nutritional, educational and social services perspectives. We have heard too often from the designers of such programmes 'let's stay the course for the next generation although some costs will be incurred in the present'. The fact that poor nutrition among infants and children will impact negatively on their future productivity and thus on economic growth in the next generation undercuts that argument. So I am anxious to hear more about the Bank's new position. I was very encouraged that the Bank is now viewing interventions in nutrition as investments for future growth, and thus as an economic investment. Does this represent a significant departure from the first generation of SAPs? Could you describe in more detail the types of interventions being made on the social safety net side to ensure that nutrition of the most vulnerable is being protected while economies are being reformed?

Secondly, we have heard that the Comprehensive Development Framework (CDF) is the new framework within which we are trying to achieve closer inter-agency collaboration. How does this relate to the Common Country Assessments (CCA) and to the entire UNDAF process? How can we ensure that we don't have two parallel processes trying simultaneously to achieve inter-agency co-ordination at the country level?

J Christopher Lovelace (World Bank): I would not entirely share Urban's characterization of the Bank's contribution to development in Africa and its unbalancing. I would agree that structural adjustment hasn't always considered the human dimension, and in some cases has clearly worked against that human dimension. I think nothing I said today represents a sea change. I think the sea change occurred some time ago and is reflected in the more humane and human face to structural adjustment that the Bank has tried to develop in its policy conditionality. Nonetheless structural adjustments, by their very nature, are emergency financial actions designed to right terribly imbalanced macro-economic circumstances and does inevitably require some difficult choices, but increasingly within that policy conditionality are considerations around the social safety net, around the impact on public expenditures and the social exhortation of others, to examine very carefully how structural adjustment fits in with the other investment type lending activities of the Bank. I would like to suggest that you judge us both by our actions and our words; where our actions have failed, point that out, but also I would like to suggest that I think there has been, if not a sea change, at least a relative rebalancing of priorities within the context of the Bank's activities and within the context of structural adjustments.

...we...encourage even the most recalcitrant and outrageous governments to abide by the Convention.

The matter of CDF and how it fits with CCA and UNDAF is detail, but the CDF must harmonize itself, must be viewed as another instrument, another umbrella, but a common umbrella if you will, in order to move the development framework forward.

Richard Jolly (SCN Chairman): With respect to the points about structural adjustment raised by Urban and Peter, I am sympathetic to those points, but I also have some sympathy with the World Bank's point. What happens if a human face to adjustment requires more international support than is available from the Bank, or from any other donor, to support a country in protecting nutrition and other human rights in the course of adjustment?

Richard Orraca-Tetteh (IUNS): I recognize that sometimes there are flaws in governments, but I also know that prices of raw materials from developing countries have been falling consistently: in 1980 cocoa sold for US$3000 dollars/ton and now it is about US$900-1000/ton. This has created a balance of payment problems and therefore, we have seen readjustments, income declines and devaluation in Africa. People cannot make ends meet. Access to food is a problem, and we are told that a peaceful, stable and enabling political, social and economic environment is the essential foundation which will enable States to give adequate priority to food security and poverty eradication. Within such poor economic and environmental situations how can we expect all these governments in developing countries to faithfully apply this right to food in all its ramifications?

...these funds actually pay for the immunization of the ordinary people...if USAID stops aid to our government that does not stop the President who is abusing human rights.

Virginia Dandan (CESCR): I heard very distinctly in these presentations that malnutrition is an indicator of human rights violations. In more concrete terms, how does this operate?

Hartwig de Haen (FAO): I think this is not so easy to answer. The right to food is defined as a right of people to provide for their own food with dignity and self-reliance. Not all malnutrition is caused by violation or denial of this right. For example, it would be very difficult to immediately say that the right to food was denied if malnutrition was caused temporarily through natural disasters that were unforeseen, although, of course, if people suffered, it could have been due to the lack of preparedness of their country for such disasters. There is also ignorance about certain nutrition issues that may be a problem. But in general I would answer yes to your question, assuming that every individual is making the utmost effort to help him/herself, then all remaining malnutrition must be caused by some difficulty that these people have in providing their own food. To identify those who have violated the right is another question. In conclusion, it is a good starting point to say that malnutrition is an indicator for the denial of the right to food.

Steven Lewis (UNICEF): There are indicators: low birth weight, stunting rates, the absence of vitamin A and other micronutrients, there are measures in the world of malnutrition, and there are measurements which can be taken. When those measurements are obtained in clinical and precise ways, and when it is seen that malnutrition is a serious problem, it is possible then, on the basis of the indicators, to go to a government and to attempt to jointly fashion a policy to correct it. Whether it is malnutrition on the one hand, or inadequate nutrition on the other, these insults can be measured in a way which leads to changes in public policy. These governments have voluntarily ratified the Convention on the Rights of the Child. They are obliged, therefore, to implement the provisions. It is the role of an organization like UNICEF not only to provide the data to them, but on the basis of the data, then to persuade them to alter their policies. We like to do that jointly.

J Christopher Lovelace (World Bank): Let me reinforce Steven's statements about measurement and using malnutrition as an indicator. It seems to me this indicator ought to become central to our equations, whether it's the Bank's CDF or whether it's a system strategy at the country level, whether it guides our overall mandates, or whether it is specific to nutrition. It seems to me not only can it be done, but it ought to be done, and there is really no excuse not to begin using these measures.

...globalization also creates and accelerates poverty, disparity, exclusion, unemployment, marginalization, alienation, environmental degradation, exploitation, corruption, violence and conflict.

William Clay (FAO): Regarding indicators, we should also include the FIVIMS approach: that calls for monitoring food insecurity and socio-economic vulnerability among at-risk population groups and for the use of appropriate indicators to assess the nutritional adequacy of locally available food supplies in addition to nutritional status indicators. We cannot hide behind national averages, or continue to discuss the problem of GNP going up but nutrition not improving -and using that to argue that malnutrition is not primarily a poverty or income-related issue. Poverty is very local and we must somehow come to grips with community and household levels of poverty indicators. We should not only be concerned with child anthropometric indicators - many parents willingly sacrifice themselves for the welfare of their children - adult nutritional status and adult access to food are very powerful indicators.

AsbjEide (NIHR): Regarding indicators and statistics, one step in the identification of violations is simply to find out what kind of national statistics are kept and what government-funded statisticians are interested in documenting. If they are not looking at the question of who are food insecure, who are undernourished and where they are, and if they don't link that up with the question of what we do about it, that is a violation in itself. The way in which statistics are organized may be part of the violation.

Tom Marchione (USAID): I think we under-emphasized the WFP issue as an indicator issue: the threshold issue, whether to go or to stay. It is really more fundamental than an indicator issue; it is one of those unanswered questions. Dr Ngongi threw down an important marker that was not heard. People working in food assistance face daily dilemmas, where choices are being made between obstinately meeting the right to food, but at the same time perhaps, supporting structures of rights violations by providing continuing assistance. People who provide food assistance come under criticism for prolonging conflicts, for delaying necessary government reforms, etc., so that by providing donor assistance, whether it be food or other types of assistance. These questions of conflict between food needs versus other needs, civil and political rights versus economic, social and cultural rights, seem to be a central issue with which this committee should grapple.

Bertie Ramcharan (UNHCHR): Dr Ngongi has framed some very serious problems in the area of food assistance. If assistance is withdrawn it is possible an emergency situation could result, requiring even greater uses of resources. What operational criteria is used now, especially in development situations in terms of providing assistance or withdrawing assistance?

Namanga Ngongi (WFP): The first criterion for providing assistance depends on the type of emergency situation. During natural emergencies we always have joint missions with FAO to determine the food shortage in the country and the food shortage for those living at the survival level; it is not our business to feed everybody in a country. During humanitarian crisis which lead to an outflow of refugees or internally displaced people, the majority of our assessment missions implemented jointly with UNHCR. UNHCR has the protection mandate for refugees.

WFP has been accused of not adequately meeting the nutrition needs of people. I agree that the 2,200 kcal/day we provide to refugees and internally displaced persons cannot be considered adequate, but that is what we presently provide. If there is even just a small window of opportunity to continuing working, we try to stay. To withdraw is an extremely complicated issue taken only as a last resort and that decision is usually made by the executive director level or higher.

Tim Frankenburger (CARE): Under what circumstances does UNICEF withdraw when rights violations occur?

Steven Lewis (UNICEF): On the very fascinating question of when do we withdraw: when the human rights violations are excessive. UNICEF is not Amnesty International, UNICEF is not Human Rights Watch; UNICEF is an intergovernmental body and, therefore, it moves heaven and earth to work with the most difficult of governments. We will work with governments with whom it is awkward to work in order to change their policies. There comes a time, e.g. Afghanistan's discrimination against education for girls, when we have finally had enough and we will withdraw. We had some tempestuous and difficult internal debates around Sierra Leone because when you have to treat rebel groups who are amputating the limbs of children as a matter of military policy, it is pretty tough.

Nonetheless, we make tremendous efforts to work on both sides of every conflict as a matter of principle, and encourage even the most recalcitrant and outrageous governments to abide by the Convention. For example, when there is a major monograph on orphanages in China, we would prefer, rather than excoriating the government from the heights (we did some of that), we would prefer to work with them in changing the quality of the staff, the provision of care, the nature of the orphanages, to try to do something which is of substantial human and child benefit.

This is the beginning of a political movement which aims to develop and implement a non-ethnocentric global ethic, and the UN is the organization that is set to lead that movement.

Richard Jolly (SCN Chairman): Dr Ngongi has presented the very relevant issue of "when to go, when to stay". What happens if the co-ordinated approach of the UN says we must all go and some agencies want to stay? It is tragic that we have also had people killed, but there are people who voluntarily want to stay. This needs some discussion.

Ted Greiner (Sweden): Dr Ngongi mentioned that a dozen WFP staff have been killed. It sounds like there are more cases, of which many of us are unaware, when governments, and presumably other combatants, use food as a weapon of war. Is it a WFP policy to not widely disseminate information about these incidents?

Namanga Ngongi (WFP): The WFP has tried wherever possible to disseminate all information about crisis situations. On a weekly basis we transmit an emergency telex to all our operations; and we issue press releases especially when we have access problems. This year we had a special ceremony for not only the 12 who were killed last year, but for the 45 persons who have been killed over the last few years while providing humanitarian assistance. Perhaps this is not sufficiently highlighted for the international community. Our operational necessities sometimes impinge on the wide dissemination of information: when WFP is confronted with blockages by a government we must use that time to negotiate for improved access. If an environment is too politicized government positions may harden - we can only go so far in denouncing the activities of governments. Within the UN system we do have the Under Secretary-General in the Office for the Coordinator for Humanitarian Affairs, who brings these problems before the security council so that the Secretary-General is able to address these matters.

Rita Bhatia (UNHCR): FAO, UNHCR, UNICEF have made their support on the right to food clear, though not always defined. Could you explicitly state WFP's position on the right to food?

Namanga Ngongi (WFP): WFP's mandate is to provide food to people both in humanitarian and development contexts. If we did not believe in the rights of people to food, we would not be taking the extraordinary risks of exposing the lives of so many of our staff to danger. But for us it is not just a rhetorical, theoretical, or intellectual discharge of responsibility - it is about the real responsibilities of the governments themselves, and enabling them to fulfil their obligations.

Michael Toole (Macfarlane Burnet Centre for Medical Research): It is of enormous added-value, as you have indicated, that a rights approach to food is adopted once UNHCR and WFP gain access to emergency-affected populations. This does mean that mistakes in the past should be avoided - those mistakes are often the impression that emergency-affected populations, including refugees, require fewer nutrients, and a narrower range of nutrients, than other human beings. I think WFP and UNHCR adopting this approach is very useful.

During the sequence of events leading to a situation where millions of people are already deprived of the right to food and UNHCR and WFP must enter, what is the added benefit of specifically including food as a human right in those situations, compared with the existing numerous conventions and international agreements on basic human rights? By taking this approach are we able to have a stronger mechanism to intervene earlier? And will individual rights be perceived as more important than sovereign rights? In the UN system sovereign rights are still override individual rights, therefore, making it impossible to plan for the situations in which your organizations will be called upon for assistance.

AsbjEide (NIHR): A human rights approach may have a preventive function which doesn't make it necessary for WFP or UNHCR to get involved in the first place. I mentioned the example from Indonesia regarding the tremendous differences in degrees of stunting among different ethnic groups and the present conflicts which could possibly have been avoided.

Amelia Bonifacio (UNHCR): When we look for, and push for this right to food and freedom from hunger, we must take into account an integrated view of the whole human being with the capacity to take care of themselves, and to take care of their basic needs in the context of safety and dignity that UNHCR and human rights advocates always promote. I would like to stress the importance ensuring that people, particularly refugees, returnees and displaced persons, are situated in that integrated view.

So, do we just have to allow for the fact that children die now, because in 50, or 100, or some other future year, everybody will be happy? Do we, therefore, have to accept this ongoing suffering?...I am concerned with what happens to people NOW, and also the awareness that what we do now will affect the next generation.

Richard Jolly (SCN Chairman): What happens to the human rights of refugees if the need to provide support exceeds the willingness or ability of the donor community?

Rita Bhatia (UNHCR): The story of UNHCR is that the needs on the ground usually do exceed what donors are able to provide. We have been in the business for almost 50 years and we always face a shortage in terms of funding. What we do is prioritize and cut down on other non-life sustaining activities.

There is never any intention, as was implied earlier, that the food given to refugees is different from the food being given to other human beings. The food that UNHCR and WFP distributes, especially during an emergency phase, may not total 2,200 kcal/day due to logistics and other factors, but it is at least 1,900 kcal/day. As soon as the emergency phase is over, the aim is to get the toy kcal/day back to the normal level.

Scientific evidence shows that 2100 kcal/day is the minimum we should provide. When countries set unacceptable levels for refugees or displaced persons, we face a dilemma: why do you want to give them more when they can live with less? For example, if the Ethiopian government sets a country threshold of 1,700 kcal/day, what can we do? How do we enforce this from a human rights perspective?

Namanga Ngongi (WFP): We cannot leave this symposium saying that States Parties have obligations but they are not legally enforceable. What are the minimum things a State should do? The State should not prevent people from attaining their rights by placing obstacles in their path. The State should remove any obstacles which prevent people from attaining their rights. They should take some action to assist the most impoverished persons to meet their minimum food consumption needs. To have a human rights-based approach to food without declaring that every country should consider 2,200 kcal/day as a minimum requirement for the right to food is hollow. It may be that governments do not have the resources themselves, but resources can be made available from the private sector or the international community. Putting the onus on governments, however, is not enough.

There are more than 800 million hungry people. There are almost 6 billion people on earth. Is solving the problem of hunger so unattainable? If there were no governments couldn't our civilized society crush this problem? I think we are initiating an impossible task when we depend only on governments and international organizations to fulfil obligations. The NGO community or the civil society must be involved. Some of the programmes mentioned today were actually executed in Brazil by the WFP. When we withdrew, NGOs assumed responsibility for executing these programmes which have been successful. We should not view our mandate as an impossible task because we do not live with hunger. Hungry people of today are really desperate and they do need action on their behalf.

Stephen Lewis (UNICEF): For WFP and UNHCR I share the sense of the desperate need for the right to food and nutrition in emergencies. How tough it is to achieve -witness Kosovo, witness the Kivu provinces in the Democratic Republic of the Congo, witness every day in Southern Sudan.

Urban Jonsson (UNICEF): I wonder if the fundamental difference between civil and political rights, and economic, social and cultural rights, is that the realization of the latter depends on the ability of the country. In the near future is there any possibility to include investment in military in the assessment of that ability?

Rita Bhatia (UNHR): We haven't really heard anything about food against defense expenditure, except briefly by Dr Toebes.

Bertie Ramcharan (UNHCHR): A rights-based approach says I take as my starting point, entitlement. I take as my starting point, the fundamental right to be free from hunger. I take as my starting point, entitlement against the government. I take as my starting point, an entitlement to a system of administration that pursues the rights-based approach. Do you think that the roots of the problem lie in globalization, or do you think that the roots of the problem lie in bad governance, corruption and nepotism?

Richard Orraca-Tetteh (IUNS): I have experienced colonial governments, and I know that in developing countries, we were not trained to govern ourselves. When our governments in Africa achieved independence, the leaders became dictators. They have reproduced colonial governments which were powerful; nobody questioned them. Now we do not have a clear understanding of democracy and good government. We need to get the people to do something for themselves.

...what about the food industry? They are powerful... What are their responsibilities?

Lillian Marovatsanga (AGN): I would just like to follow up with Dr Haddad's issue of loans based on government adherence to human rights. The ordinary people in Zimbabwe now believe that the UN agencies and the World Bank and the Government are in bed together to kill the ordinary people because of this humanitarian aid issue. For example, last week USAID announced that they were going to stop aid to Zimbabwe because the government was abusing human rights - fine on one level, but these funds actually pay for the immunization of the ordinary people; it supports HIV/AIDS programmes for the ordinary people; and if USAID stops aid to our government that does not stop the President who is abusing human rights. The World Bank and IMF use this strategy as well. You find that civil society is on its own, trying to do things which the governments and agencies are not doing. This is an area which needs great attention and discussion.

Ricardo Uauy (AGN): The role of governments in developing countries is now being shrunk. We heard about corruption, economies and financial crisis - obviously the role of the State maybe should be shrunk in terms of economists - but the role of the State in promoting and enhancing human rights definitely should not - it should be considered a State obligation. We do not have to go through only governments to get this advance, as the Brazil case has demonstrated, a key ingredient is civil society.

Michael Windfuhr (FIAN): We should not focus on whether bad governance or gloablization is the most important reason for human rights violations. The important element regarding economic, social and cultural rights is that it shows us what States should do. It also teaches us what a State should not do - what really is bad governance - in that way it defines good governance. Many governments now use the globalization argument as an excuse for not implementing their obligations. The right to food requires access to food, but the possibility to feed oneself in dignity, as stated by Mrs Bonifacio from UNHCR, is at the core.

J Christopher Lovelace (World Bank): Centrality to development is good governance and we must not tolerate the intolerable, but we need to have a compassionate, firm and balanced view on good governance which would allow governments to become less reckless and able to address the agendas we have shared at this symposium.

Urban Jonsson (UNICEF): Given the history of the Working Group on Nutrition, Ethics and Human Rights, why has SCN's attitude and commitment to the human rights approach changed? Some answer, it is now possible because the Cold War is over and civil and political rights, and economic, social and cultural rights can be discussed in the same room. Others answer that Secretary-General Kofi Annan has addressed this issue in his reform for the UN. I am not satisfied with these explanations - why did those things happen? I think it is a fundamental reaction to the negative impact of globalization.

Globalization is the result of trade negotiations and development of markets which is promoted as the only rational alternative for the world. Those of us working in development know, however, that globalization also creates and accelerates poverty, disparity, exclusion, unemployment, marginalization, alienation, environmental degradation, exploitation, corruption, violence and conflict. I think most of us just feel helpless and it is due to that 'helpless' perspective that normative approaches have found fertile ground, and that development thinking will no longer accept utilitarian approaches.

The World Summit for Children was the first manifestation where heads of governments stated they do not accept that children suffer and they agreed to take certain actions - they did not study whether these actions had economic impact -they set a global minimum standard. When I heard even the World Bank admit their development programs maybe did not have a human face, that gave me hope. If the World Bank begins to accept normative arguments in their development programs, then I think we can understand why all of a sudden, in our helplessness, we finally move to say, let's agree that certain things must be done. This is the beginning of a political movement which aims to develop and implement a non-ethnocentric global ethic, and the UN is the organization that is set to lead that movement.

Hartwig de Haen (FAO): I cannot fully associate with Dr Jonsson in saying that globalization leads to more suffering, to more poverty, to less health, etc. I do fully share the concern about existing suffering and some side effects of globalization, but we should first define what we mean by globalization. If you mean the Asian financial crisis and the lack of social nets which leads to suffering and poverty, then I do agree. However, if we define globalization more generally and include international trade and trade liberalization, then we should be very cautious in drawing such negative conclusions. For example, the poorest countries in the world would be much worse off if they did not have access to cheap food imports. The effects of globalization require analysis and more differentiated statements.

Sakiko Fukuda-Parr (UNDP): I do not agree entirely with Urban. Globalization is definitely at the root of human rights violations, not because globalization produces poverty, but because globalization may result in improper governance. Globalization has tremendous potential for generating resources, wealth, and ideas; indeed, one of the great benefits of globalization has been the greater spread and acceptance of universal human rights principles around the world. The kind of globalization we see today, however, has been driven by policies seeking market efficiency.

Urban Jonsson (UNICEF): Yes, I know certain aspects of globalization are positive: information, knowledge exchange, etc. I rather prefer fair trade to free trade, and globalization's negative impact is well-documented. Today in the wealthier countries, we are creating a class of people - not unemployed people - but people who have never had a job - and that is part of the so-called free market in the world.

Africa is not part of this globalization, it is totally marginalized. The world is allowing Africa to die of HIV/AIDS - the western world contributes some pocket money only to keep their own conscience cool. I know what is happening in some east African villages in Tanzania - I can inform you that life for the normal person is worse off today than 15 years ago. No one can convince me that trade liberalization and all this openness have helped the common person.

Finally, governance - we know corruption is everywhere. I was extremely happy when corruption was discovered in the European Union because now we can stop the discussion that corruption exists only in poor countries. Corruption is part of globalization, part of the new era, part of the new world in which we live.

AsbjEide (NIHR): We cannot say globalization is bad or good. Globalization is essentially an economic and technological process driven by the belief in the usefulness of a free market. I would like to contrast globalization with the notion of universalization of human rights. If these two processes are related in a meaningful way, globalization becomes a more humane process. Utopian belief in the blessing of globalization can be compared to the now defunct Marxist Utopia which had these theoretical basic elements: during the process of capitalistic development serious social cleavages would eventually occur; a revolution would occur; the working class would take power; and the working class would have a period of proletarian dictatorship. During that proletarian dictatorship one would make use of all the available technological insights and create a society of abundance; when abundance was achieved, there was no more a need for a State; everybody would be happy because all problems would have been solved. This was a Utopia which misled many people to tolerate suffering in their own time, in the belief that it would lead to a better future. We are now living in another Utopia, the ultimate benefit of globalization, which is made of entirely different colours, but with a similar mythical but dangerous belief: ultimately the free market will make everybody happy.

So, do we just have to allow for the fact that children die now, because in 50, or 100, or some other future year, everybody will be happy? Do we, therefore, have to accept this ongoing suffering? I am simply not willing to accept either of these two utopias, or any other Utopia. I am concerned with what happens to people now, and also the awareness that what we do now will affect the next generation. If we address that issue, then we have the framework by which to address it; the framework is the International Bill of Human Rights.

Sakiko Fukuda-Parr (UNDP): The impact of multilateral agreements, namely the core of globalization economic policies on the right to food, has not been mentioned. FAO is very centrally involved in global standards, and these standards have a great deal of impact on the opportunities and the politics of trade in food, and therefore, on issues of prices to producers, to consumers, etc. There is also the impact of TRIPS - trade-related aspects of intellectual property rights - on access to new production technologies; and that applies not only in the area of food, but in the area of medication and livestock. Obviously these issues of standards and of intellectual property are among the many very critical issues of multilateral negotiations that will drive access to food, similar to the way structural adjustment policies affected people in the 1970s and 1980s.

Hartwig de Haen (FAO): I agree that standard setting and TRIPS have important relevance for the right to food - a very direct relevance - because if consumers can be sure that the food they buy is safe, it means that their right to be supplied with food which doesn't harm their health is respected. These standards have a role in international trade because they were introduced as a measure to avoid unfair trade - countries can no longer restrict imports if the exporting countries can show that they respect these standards. Fair trade should, at the end, lower prices, lower costs of trade, and therefore make food affordable for low income consumers.

Regarding intellectual property rights, we know the TRIPS Agreement had foreseen that, by the end of 1999, all countries should have intellectual property right legislation on plant varieties. There is still much to be accomplished in order to respect indigenous people's and national institution's property rights, and to protect them against exploitation by competing interest groups. These international agreements go further than the standard-setting machinery. The agreement on agriculture and other WTO agreements all try to regulate trade to make it more transparent, to avoid unfair practices, and to reduce protectionism in some parts of the world, which hinders the rights of others. There are some countries which may initially suffer, and these are the poorest of the poor which depend on imports, which do not have their agriculture in place to compete in this liberalized world. This has been recognized in the WTO Marrakesh agreements in the form of a Ministerial Decision on the countries that are negatively affected, at least initially. We have continuously reminded the international community that this Agreement needs to be respected and we will continue to do so because it not only recognizes the difficulties of some countries, but also promises assistance to them.

...human rights set limits and direction to political and economic choice. Economists are implicitly or explicitly aware that there are some economic choices that simply are not permissible, even if they could give a good return...

Ted Hood (IUFST): We have heard a lot about governments and their responsibilities, but what about the food industry? They are powerful, they are multinational, they have programmes in many countries - what mechanisms are available for consultation with the leaders of industry? What are their responsibilities? How can these be implemented? Companies operating in developing countries should be required to incorporate human rights in their company strategies just as country strategy documents do. These questions are so critical to the debate, and their solutions so central to realizing nutrition and human rights objectives, that they must be addressed.

William Clay (FAO): Ted Hood's comments here about the private sector need to be addressed. Unfortunately, there is almost a constant thread that somehow, civil society does not include the private sector, and does not include business. Even more disturbing is the fact that when we do talk about business, it is assumed we are talking about transnational corporations, and that, in turn, is immediately translated into something negative for human rights and nutritional welfare. Both of these assumptions are inaccurate and are gross misrepresentations of the facts. The private sector is small producers, small processors, marketers, people who service tractors, people who contribute to stimulate local economies, and it is this broad array of local enterprise that needs to be encouraged and developed. It was interesting to examine the indicators we discussed - we listed investment in health and education -there was nothing about investment in agriculture and rural development. In many low income, food-deficit countries with food insecurity that is where we have the problems.

There is a tendency to somehow equate efficiency, use of markets, and globalization in negative terms. There is absolutely nothing wrong with being efficient in our allocation of resources. In fact we have to be efficient with limited resources. If we are not efficient we are consigning ourselves and future generations to more problems. We need to focus attention on the States obligation to facilitate those conditions in which people can access the resources they require to secure their own food with dignity.

Barbara MacDonald (CIDA): In terms of economics and statistics, what should be the role of researchers, information collectors, analyzers, and interpreters as duty-bearers, especially with respect to feeding back the information to the malnourished populations and facilitating action?

Lawrence Haddad (IFPRI): Those of us who collect information have a very big role to play; the research community has much to offer in terms of collecting information on rights violations and feeding it back to communities in various ways. It is an area we need to address.

AsbjEide (NIHR): Lawrence, you said that economists have values, and I am sure they have, but what I would like to underline is that human rights set limits and direction to political and economic choice. Economists are implicitly or explicitly aware that there are some economic choices that are simply not permissible, even if they could give a good return, they are still not permissible. Just like the limits of a national constitution, there are things politicians simply cannot do, and there are other things they have to do - it's not a question of economic and political calculus. That is how we should conceptualize human rights.

Peter Matlon (UNDP): It seems from the discussion that we have real problems converting concepts into programmes, rights into claims, and implementing the rights-based model. Clearly we need precedent we need case studies. What I would suggest is that the SCN select a handful of pilot countries through which we attempt to formulate, implement and then monitor a truly rights-based approach using the UNDAF framework. It could be countries purposively selected to represent classes of situations so that we can actually learn something from their comparison. These programmes would have to cut across not just nutrition and food and health, it would have to include integration of governance interventions. What would be distinct here is that we explicitly include the High Commission on Human Rights in the elaboration of these programmes within the UNDAF processes. I suggest we move forward concretely, select some pilot countries, and see what we can accomplish.

Bertie Ramcharan (UNHCHR): If I would have made some framework remarks at the beginning of this discussion, I would have said there is very little evidence of a rights-based approach to food. I would have said that there is considerable softness in the approach of many major governments to economic, social and cultural rights as rights and to their implementation. And I would have said that for countries that have the responsibility to guarantee the implementation of the right to food, and the fundamental right to be free from hunger at the national level, enormous resources are squandered and pillaged in wars and in corruption, and a rights-based approach to food is not even on the radar screen.

Historically, there has been much circularity in the discussion of economic, social and cultural rights - you can go back 50 years to read the reports - so I am glad we have identified several concrete things with which we may move forward: the Draft General Comment, framework legislation, and some case studies. There is a tendency in the human rights arena to think that you can settle world-order issues while the power is perhaps against you, so it's better to concentrate on a few practical issues and strive for incremental progress in these issues. In terms of advancing the human rights approach to food and nutrition, seize this issue of model legislation because it is something the governments can take back home. Legislation is a framework for policy, and it's a framework for institutions, and it's a framework to incorporate the General Comment, and it is a framework to do all of the things that you wish to do so. Draft that model legislation.

The gender perspective has been made poignantly by Dr Brundtlund and that requires practical attention. The point was made to monitor situations in order to identify and respond to vulnerable communities. The point was made to share best practices and I tie that to your proposal for case studies and precedents. I will end with a mention of the Draft General Comment because if you do it well enough, you can put all of the policy objectives that you wish into this General Comments, and you can get a statement that beckons the international community to a human rights approach to food and nutrition. Thank you very much.

Figure

COMMENTARY

A HUMAN RIGHTS APPROACH
TO FOOD AND NUTRITION POLICIES AND PROGRAMMES

PETER L PELLETT
UNIVERSITY OF MASSACHUSETTS AT AMHERST

Even to mention poverty in the context of malnutrition was, not so very long ago, to be identified as a political radical. Good nutritionists were only interested in nutrients. The unspoken dogma in much of the field was that, although malnutrition was caused by a lack of food and nutrients; affording and obtaining food was outside the domain of nutrition science and should be addressed by politicians, agriculturists and economists.

A major change in perception took place following the review of Scrimshaw, Taylor, and Gordon in 1968 when it became widely recognized that infection, health and sanitation were also of major importance in the causation of malnutrition. Hence national developmental concerns, including poverty, became accepted as impinging much more directly on nutritional status. Nutritional care, which was also poverty and education related, only became part of the mainstream agenda as recently as 1992, following the International Conference on Nutrition (FAO/WHO 1992a). Now, at the end of the century we have a high profile symposium under the auspices of ACC/SCN to discuss the concept of good nutrition as a human right. Incidentally, I was disappointed that the debt we owe to the late James Grant was not acknowledged in the proceedings of the conference; his untiring efforts on behalf of children during the years when he was directing UNICEF always had the rights of the child as a implicit component of the agency's activities.

There has been remarkably rapid progress, especially recently, in the conceptualization of the background to global malnutrition. The question remains, however, will the explicit inclusion of human rights into the politics of malnutrition make any difference to the many millions whose lives are blighted by this problem? Most of the speakers expressed confidence that this will be so. I am delighted that we have progressed so far in our thinking and I hope that they are right. I remain skeptical, however, that anything really has changed. Nevertheless, a number of fundamental issues on the interactions between nutrition and human rights were raised by the speakers especially during the discussion sessions. These issues included excessive military expenditures, globalization resulting in continually increasing gaps between rich and poor, imposed structural adjustment programs from the IMF affecting the poorest and most vulnerable, and the basic importance of economic and social rights, including the right to development. Probably, however, because of the inherent difficulties of resolution of these issues and the political sensitivities involved they were never addressed in depth. Other fundamental issues such as the imposition of comprehensive economic sanctions and their effects on human rights, global pressures from multinational organizations for adoption of genetically modified foods, and the possible restrictions and inhibitions of action within the UN system as influenced by funding sources were, however, not mentioned at all. Perhaps this was because they were more difficult to resolve and are even more politically sensitive. Will our new delineation of a human rights approach be any more capable since it is these fundamental issues which have been, and will remain, the constraints that limit good nutrition for all?

It has been observed by Schuftan (1999) that ...the time has come for the nutrition community to more consciously take notice of how micronutrient interventions and protein energy malnutrition (PEM) interventions have progressively drifted apart. They have de-facto become different tracks in nutrition work answering what seems different challenges. In short, they have grown into two, by now, well differentiated separate domains.

PEM interventions are more difficult to implement because they are fundamentally political, while micronutrient interventions are more technical and are hence, more easily attainable. The hope is now that the human rights approach can change this balance in favor of more overtly political activities.

The Right to Development was emphasized throughout the symposium yet the fact that the United States has little sympathy with this right was not discussed. The opposition is important because of the overwhelming power of the United States in the funding of many UN and other international development activities. The linkage between expectation of funding and potential inhibition of actions is rarely acknowledged, but as one who has consulted for a number of UN agencies over the years, my personal experience has confirmed that it can be real.

The background to, and components of, the Right to Development have been outlined by Malcolm Shaw (1997) in his textbook on International Law:

In 1986 the UN General Assembly adopted the Declaration of the Right to Development (GA Res. 41/128). This instrument reaffirms the interdependence and indivisibility of all human rights and seeks to provide a framework for a range of issues (article 9). The right to development is deemed to be an inalienable human right of all human beings and peoples to participate in and enjoy economic, social, cultural and political development (article 1), while states have the primary responsibility to create conditions favorable to its realisation (article 3) including the duty to formulate international development policies (article 4). States are particularly called upon to ensure inter alia equal opportunity for all in their access to basic resources, education, health services, food, housing, employment and the fair distribution of income. Effective measures are to be undertaken to ensure that women participate in the development process and appropriate economic and social reforms are to be carried out with a view to eradicating all social injustices (article 8).

In the 1986 General Assembly vote on the Declaration of the Right to Development, however, there were a few abstentions and one vote against by the United States. Nevertheless, at the World Conference on Human Rights, the International Conference on Population and Development, the World Summit on Social Development, the Fourth World Conference on Women and the World Food Summit, the right to development was reaffirmed in declarations adopted by consensus. Probably, therefore, this right exists (UNHCHR 1997, 1998), albeit not in international treaties and in consequence, the UNDP has adopted the concept of such a right in its development activities.

Although the general issue of development is clearly on the international agenda Shaw (1997) nevertheless considers that "it is premature to talk in terms of a legal right in international law of groups or peoples or States to development". The United States goes further and, in line with their negative vote in 1986, regards the socio-economic rights of the Universal Declaration as having no status. They are, in the words of former UN Ambassador Jeanne Kirkpatrick, "a letter to Santa Claus": "Neither nature, experience, nor probability informs these lists of 'entitlements', which are subject to no constraints except those of the mind and appetite of their authors." On the right to development, Washington's ambassador informed the UN Commission on Human Rights that these are not rights: the proposals "seem preposterous" and even "a dangerous incitement" (Chomsky 1999).

An important question thus remains: is there any reality to a right to development when such a right has no basis in international law and is not recognized by the United States, whose financial power and global interests are sufficient to inhibit its application? One wonders, for example, whether the disappointingly poor response from the UN development agencies to the CESCR cited by Dr Dandan could be related to the knowledge that the United States has little sympathy with economic and social rights in contrast to its vociferous, but selective, support of civil and political rights.

It appears then, that in the view of the United States a right to development is superfluous since the global free market is the ultimate answer to all development issues. Not all would agree, John Gray, of the London School of Economics (1998) summarizes his concerns about globalization:

A global free market...resembles that other twentieth century experiment in Utopian social engineering, Marxian socialism. Each was convinced that human progress must have a single civilization as its goal. Each denied that a modem economy can come in many varieties. Each was ready to exact a large price in suffering from humanity in order to impose its single vision on the world. Each has run aground on vital human needs.

This concept broadly concurs with the views stated during the discussion sessions by Urban Jonsson and Asbj Eide, that globalization has, in general, increased the divisions between rich and poor and is, in consequence, highly correlated with poverty and major world-wide problems of nutrition.

I also do not believe that world-wide development will take place through the benevolence of the global free market. The right to development is, in my view, an essential component of any human rights approach to food and nutrition policies and programmes. I appreciate, therefore, the commitment of Mary Robinson to this end and I hope that she can continue "being strong on both sets of rights: strong on civil and political rights; strong on economic, social and cultural rights" in the face of the United States' indifference, if not outright hostility, to the latter.

Finally, the most glaring omission in the proceedings of a conference of experts addressing relationships between nutrition and human rights is the absence of any statement concerning the effects of the comprehensive economic embargo on Iraq. These sanctions have been in operation since 1990 and their impact has been devastating for the people of Iraq. How does one reconcile the fact that the majority of the articles and many of the items in the preamble of the Universal Declaration of Human Rights, which after all, have been in existence for 50 years, have been violated to a greater or lesser degree as a direct result of the comprehensive economic sanctions. This imposition also appear to be in conflict with the aims of the World Declaration of Nutrition (FAO/WHO 1992b). Ironically, economic sanctions were invoked by the Security Council of the United Nations which is also responsible for upholding human rights - the perceptive question by Juvenal from some 2,000 years ago: "Quis custodiet ipsos custodes?" [Who shall guard the guards themselves?] thus remains highly relevant.

These violations of human rights induced by sanctions include elevated and excessive levels of malnutrition together with increased mortality at all ages, as well as disruption and social devastation of a whole society. The increased mortality caused by the sanctions has even been highlighted in the establishment journal "Foreign Affairs": Mueller and Mueller (1999) estimate that the excess deaths are "more than have been slain by all so-called weapons of mass destruction throughout history". If we accept that on a world basis, poverty is the major determinant of child malnutrition and high infant mortality, then it seems that we must accept the effects of artificially induced poverty, i.e. economic sanctions, as also being causative of malnutrition and increased mortality (Pellett 1998). It was noted by ACC/SCN (1997) itself that in global terms "the continuing scandal of widespread malnutrition is a clear violation of human rights, and in particular the rights of the child". The article did not explicitly refer to Iraq but, if child malnutrition is a scandal and an abuse of human rights on a world basis, is it not also true for Iraq?

Yet, despite published information from the United Nations' own Technical Agencies working in Iraq (FAO, 1993, 1995, 1997/8, Ministry of Health: GOI/UNICEF Iraq 1997, 1998), as well as by private organizations (CESR 1996), of excessive levels of malnutrition, significant effects on health and excess mortality, there has been no official condemnation of comprehensive economic sanctions from any of the major societies concerned with food, nutrition and health or officially from ACC/SCN. It took the resignation of Assistant Secretary-General and Chief UN Relief Coordinator for Iraq, Dennis Halliday from the UN system before he was able to make his protests heard. If nutrition professionals and humanitarians are unable to condemn the effects of comprehensive economic sanctions on human rights, in even these circumstances, are we likely to have the strength and the political will to use human rights effectively as our supposedly new weapon against global malnutrition?

References

Center for Economic and Social Rights (CESR) (1996) Unsanctioned Suffering Center for Economic and Social Rights, New York, New York.

Chomsky N (1999) The hypocrisy of it all. <http://www.MiddleEast.org> Jan 25th. 1999. Also see http://www.zmag.org

FAO (1993) Evaluation of the Food and Nutrition Situation in Iraq. Technical Cooperation Programme, Food and Agricultural Organization of the United Nations, Rome.

FAO (1995) Evaluation of the Food and Nutrition Situation in Iraq.

TCP/IRQ/4552. Food and Agricultural Organization of the United Nations, Rome.

FAO (1997/8) Evaluation of the Food and Nutrition Situation: Iraq.

TCP/IRQ/6713. Food and Agricultural Organization of the United Nations, Rome. Also see http://www.fao.org/giews

FAO/WHO (1992a) International Conference on Nutrition: Nutrition and Development - a Global Assessment. Food and Agricultural Organization of the United Nations, Rome.

FAO/WHO (1992b) International Conference on Nutrition: The World Declaration on Nutrition. Food and Agricultural Organization of the United Nations, Rome.

Gray J (1998) False Dawn: The Delusions of Global Capitalism Granta, London, p235.

Ministry of Health: GOI/UNICEF Iraq (1997) Nutritional Status Survey at Primary Health Centres During Polio National Immunization Days in Iraq. April 12-14. IRQ/97/169.

Ministry of Health: GOI/UNICEF/WFP Iraq (1998) Nutritional Status Survey at Primary Health Centres During Polio National Immunization Days in Iraq. March 14-16.

Mueller J and Mueller K (1999) Sanctions of Mass Destruction. Foreign Affairs Vol. 78(3) 43-53 May/June.

Pellett PL (1998) Editorial: Nutrition and Health in Iraq. International Quarterly of Community Health Education Vol 17(2) 109-115.

Schuftan C (in press) The different challenges in combating micronutrient deficiencies and combating protein-energy malnutrition. Ecol. Food Nutr.

Scrimshaw NS, Taylor CE, and Gordon JE (1968) Interactions of Nutrition and Infection WHO Monograph Series No. 57. World Health Organization, Geneva.

Shaw MN (1997) International Law 4th edition, Cambridge University Press, pp223-224.

United Nations ACC/SCN (1997) The Nutrition Challenge in the Twenty-first Century, SCN News, Vol. 14 pp.3-9, c/o World Health Organization, Geneva.

United Nations Development Program (1998) Integrating human rights with sustainable human development - a UNDP Policy document. <http://magnet.undp.org/Docs/policy5.html>

United Nations HCHR (1997) United Nations Documents on the Right to Development. <http://www.unhchr.ch/html/menu2/10/e/rtd_doc.htm>

United Nations HCHR (1998) Declaration on the Right to Development. http://www.unhchr.ch/html/menu2/10/e>

Acknowledgments: I am grateful to Margret Vidar of FAO and to Judith Holmes of the Legal Studies Department of the University of Massachusetts for answering my questions and for identifying information sources concerning the right to development. Peter L Pellett is Professor of Nutrition and has visited Iraq several times on FAO missions. U Mass-Amherst, Dept of Nutrition & School of Public Health & Health Sciences, Chenoweth Laboratory, Box 31420, Amherst MA 01003-1420 USA; [email protected]

COMMENTARY

MAINSTREAMING THE HUMAN RIGHTS APPROACH
IN HUMANITARIAN INTERVENTIONS

PETER SALAMA

FORMER MEDICAL COORDINATOR OF EMERGENCIES
CONCERN WORLDWIDE

As the details of the tragedy that has taken place in Kosovo over the past year become clearer, the international community may be entitled to feel some sense of vindication; the systematic abuse of human rights which was taking place in the province seems to have justified the military intervention, at least in retrospect. According to some, the NATO-led intervention can be viewed as the setting of an important precedent, human rights being prioritized over the rights of a particular state; a challenge to the notion of the absolute inviolability of state sovereignty (Havel 1999). Many UN agencies and NGOs, observed the relationship between the deterioration in the humanitarian situation and the progressive failure by the Serbs to respect human rights. Human rights language was effectively used to build strong advocacy platforms in recognition that reacting to the humanitarian consequences of the crisis with purely humanitarian assistance would not constitute an adequate response.

The necessity for a political solution in conjunction with the humanitarian efforts in the health, water, sanitation, shelter, food and nutrition sectors was emphasized by the humanitarian community at an early stage of the crisis in the Balkans. The solutions favoured ranged from intensifying diplomatic efforts, to taking measures to ensure evidence was collected for possible war crimes tribunals and, in some cases, to incorporating the spectrum of military options. In short, what occurred in Kosovo was the partial incorporation of the human rights agenda into the humanitarian objectives; a relatively successful example perhaps, of the so-called 'mainstreaming' of the human rights approach.

If this type of analysis and intervention remains confined to European emergencies there is a risk that a two-tiered system will be created, if it has not been already. On one hand there will be situations in which a human rights analysis will lead to broad (and costly) interventions that at least attempt to address the causative factors underlying the crisis. These will invariably be located in Europe or places of strategic, geo-political importance such as the Middle or Near East. Then there will be the category of 'other' -significant and well-documented human rights abuses occurring but leading to more or less, standard humanitarian responses with narrow parameters. The latter will occur in countries outside the margins of perceived geopolitical importance. The basic needs approach will provide the entire framework in both assessment and programming, leaving the rhetoric of 'mainstreaming' the human rights approach far behind.

Sierra Leone is perhaps the most dramatic example of a complex emergency that has recently been placed in this low-priority category in terms of international attention received. Earlier this year, a combined force from the Revolutionary United Front (RUF) and the Armed Forces Ruling Council (AFRC) attacked the capital, Freetown. The small Nigerian-led ECOMOG (the West African Peacekeeping Force) contingent was quickly over-whelmed. In the weeks that followed, the civilian population suffered some of the gravest abuse of human rights in recent history.

In February the United Nations Observer Mission for Sierra Leone (UNOMSIL) documented the following atrocities committed by the rebel forces; the killing of civilians; the perpetration of mutilations and amputations; the perpetration of rape and sexual abuse; the deployment of child soldiers; the abduction of civilians and the destruction of civilian properties and public utilities. The rebels conducted a widespread campaign aimed at terrorizing the civilian population. Although the exact number of deaths is not known, it is estimated that between three and five thousand people, the majority of whom were civilians, were killed in Freetown alone (UNOMSIL 1999). One of the major tactics designed to instill fear was a campaign of limb amputations. A study in a general hospital in Freetown in February reported 63 partial limb amputations; 11% of the injured were less than 15 years of age and 43% were women (MSF 1999). There is reliable evidence that the rebel forces were not the only perpetrators of human rights violations: summary executions were also carried out by ECOMOG forces.

The impact on public nutrition has been significant. An estimated 150,000 people were displaced within Freetown and congregated in public buildings (for example, the national stadium) where sanitation and water facilities were inadequate. The displaced were largely dependent on the international community for food and other basic requirements. Increasing rates of diarrhoea and malaria as well as a measles epidemic as a consequence of the overcrowding and poor water and sanitary conditions amongst the displaced populations have been reported from areas which have been accessible to the humanitarian community (Nolan 1999). A nutritional screening in Freetown and surveys in Kenema and Blama have documented the decline in nutritional status and concomitant rise in the prevalence of malnutrition among children (ACF 1999, Merlin 1999).

In addition, the conflict has had a profound effect on the food security and livelihoods of the displaced communities. In Kissy and other areas of eastern Freetown, for example, up to 90% of homes were burnt. Large swaths of the agricultural regions of the north and east of the country, including major transportation routes, remain inaccessible. This has resulted in an increase in food commodity prices and an insecure food pipeline. The hunger gap, normally in July and August, is expected to be longer and more severe this year.

There are practical obstacles to mainstreaming a human rights approach in all complex emergency situations. It has previously been noted that there is an urgent need to clarify the relationship between human rights law and humanitarian law in complex emergencies (Jonsson 1999). Clearly, violations of all the major human rights conventions, the ICCPR, ICESR and the CRC have recently occurred in Sierra Leone. But while human rights law fundamentally outlines the responsibilities of governments to respect, promote and fulfill their human rights obligations, it is not binding for rebel forces such as the RUF. Furthermore it does not deal explicitly with the internally displaced, nor does it provide for a right to humanitarian access and, most importantly, it may be derogated in times of emergencies and civil conflict (Plattner 1992). Humanitarian law, through provisions such as Common Article 3 and Additional Protocol 11 of the Geneva conventions which do apply to this type of internal conflict, may in fact assist the international humanitarian community in operationalizing the spirit of the human rights approach in areas of internal conflict more than human rights law itself. In conjunction with the ICRC, this type of approach needs to be developed further.

There is an urgent need for the international humanitarian community to address the issue of incorporating human rights principles in assessment and programming in countries beyond Europe. In some situations this will require overcoming practical constraints such as the inapplicability of human rights law in certain situations. Other branches of international law such as humanitarian law may be more useful in these situations. Most importantly however, the mainstreaming of a human rights approach across emergency programmes in the food and nutrition sector or indeed in any other sector, will not become a reality unless there is a real commitment to applying the high-minded principles of human rights more universally.

References

Action Contre La Faim (ACF)/Ministry of Health (1999) Rapid screening assessment in Freetown.

Havel V (1999) Kosovo and the End of the Nation-State The New York Review Vol. XLVI No. 10.

Jonsson U (1999) The Work of the SCN Working Group on Nutrition, Ethics and Human Rights (see page 47 this issue).

Merlin International (1999) Nutritional surveys in Blama (May 1999) and Kenema (June 1999).

Medecin Sans Frontieres (MSF) (1999) Survey report from Connaught Hospital, Freetown (February).

Nolan M (1999) Personal communication.

Plattner D (1992) The Protection of Displaced Persons in Non-international Armed Conflicts The International Review of the Red Cross No. 291 pp 567-580.

United Nations Observer Mission for Sierra Leone (UNOMSIL) (1999) Report of the human rights assessment mission to Freetown.

Thanks to staff at Concern Sierra Leone and Dr Bruce Laurence and Dr Monica Nolan, Merlin. Please note that more information on the nutritional situation of the war-affected population of Sierra Leone is available in RNIS 27. For further information contact: P Salama email: [email protected]

TESTED IN COURT: THE RIGHT TO BREASTFEED

GEORGE KENT
UNIVERSITY OF HAWAI'I

The human right to food and nutrition recently faced a hard test in Eugene, Oregon, in the United States. On September 17, 1998, Kathleen Tyson of Eugene, then six months pregnant, was told that her blood tests indicated that she was HIV-positive. Her son, Felix, was born on December 7, 1998. He appeared to be healthy in every way. Less than 24 hours after his birth, Kathleen was pressed by a pediatrician to treat Felix with AZT, an antiretroviral drug, and to not breastfeed him.

Having studied the issue along with her husband, David, she declined to accept that advice. Within hours, a petitioner from Juvenile Court came to her room, and issued a summons for her to appear in court two days later. She and her husband were initially charged with "intent to harm" the baby, but the petition, dated December 10, 1998, said that the child "has been subjected to threat of harm." When the Tysons appeared in court, they were ordered to begin administering AZT to Felix every six hours for six weeks, and to stop breastfeeding completely. The court took legal custody of the infant, but allowed the Tysons to retain physical custody as long as they obeyed the court's orders.

A trial was held in Eugene, Oregon from April 16 to April 20, 1999. There were three main lines of argument for the Tysons. First, the Tysons' advocates questioned the validity of the blood tests used as the basis for diagnosing Kathleen Tyson as HIV-positive. This was supported by expert witness Roberto Giraldo, who has published extensively on the uncertainties surrounding the tests. Second, they raised questions as to whether it has really been clearly demonstrated that HIV causes AIDS. This was the view advanced by expert witness David Rasnick, a leading challenger of conventional thinking about the causes of AIDS. Third, I was to be the expert witness regarding the human rights dimensions of the case.

I wanted to argue that the basic principle underlying health care decision-making normally is that patients themselves make the final decisions regarding their care, on the basis of informed consent. The function of health care workers is to provide the information needed, and to give advice, but not to make the final decisions. While there are exceptional cases in which the state may override this principle, and the patient may be treated coercively, the conditions required to justify such an exception were not met in this case. The published scientific evidence was not adequate to justify the State's presumption that breastfeeding by a woman diagnosed as HIV-positive (but otherwise asymptomatic) would be subjecting that child to excessive risk by breastfeeding. Moreover, I wanted to show that United Nations agencies and the United States government had repeatedly reaffirmed the principle that HIV-positive women should not be coerced. Their official policy is that the treatment of HIV-positive women should be based on their informed consent.

After I was sworn in, and the Tysons' lawyer explained that he was going to ask me about the human rights dimensions of the case, the judge intervened and said these matters were irrelevant. I then had to step down. Just hours later, the judge gave his decision: the Tysons lost. The State of Oregon retained legal custody of Felix. The Tysons retained physicial custody on the condition that, as ordered, Felix would not be breastfed.

The physicians who took the State's side in the case against the Tysons sincerely believed that the Tysons were endangering Felix. The scientific community, however, has failed to meet its obligations to produce the strong and clear scientific knowledge that is needed to guide individuals in situations like the one faced by the Tysons. I believe that if the Tysons had been presented with clear, hard evidence that breastfeeding Felix would be likely to harm him, they would have decided accordingly. We have clear indications of the physicians' strong beliefs, but we do not have scientifically sound studies of the sort they themselves claim to require. If there is a failure of informed consent, there is an obligation on the part of government and health care workers to provide better information. Resort to coercion is not the appropriate remedy.

Both the Tysons and the cause for realization of the human right to food and nutrition lost in this case. Nevertheless, this setback might be turned to advantage if it helps us to appreciate the importance of clarifying and strengthening those rights. It is as important for health care workers and policy makers to understand the importance of human rights as it is for them to understand the technical and scientific dimensions of health care.

References

Kent G (1998) Women's Right to Breastfeed vs. Infants' Rights to Be Breastfed SCN News No. 17 (December) pp18-19. (The entire issue focussed on Nutrition and HIV/AIDS can be accessed through the SCN's website at http://www.unsystem.org/accscn under SCN News No. 17. This piece can be found in the PDF file at pages 20-21.)

Kent G (1999) HIV and Breastfeeding Mothering No. 9 (May/June) pp 65-67, 70-71.

For further information contact: Dr Kent, Professor & Chair, Department of Political Science, University of Hawai'i, Honolulu, Hawai'i 96822-2281 USA; tel: 1 808 956 7536; fax: 1 808 956-6877; Internet: http://www2.hawaii.edu/~kent; email: [email protected]

RECASTING WID - A HUMAN RIGHTS APPROACH

DANIEL WHELAN - ICRW

Figure

This International Center for Research on Women (ICRW) working paper No. 6 is intended to stimulate discussion and suggestions for improvement in the area of human rights. Its focus is on Women in Development (WID) in the light of the fact that 556 million women and girls are illiterate - is this not a violation of their right to education? That 600,000 women die annually as a result of complications of pregnancy and an additional 18 million women suffer from pregnancy-related morbidities that go untreated - is this not a failure of governments to meet their obligations to respect, protect and fulfil women's rights to the most basic attainable standard of health? How can the feminization of poverty be viewed as anything less than a violation of women's rights to an adequate standard of living, equal access to employment, credit, property, and training? These alarming statistics constitute the foundation of the literature on WID and are generally referred to as "the state of the world's women". The time has come to call these realities what they truly are: human rights violations.

This powerful 16 page paper begins with the premise that economic and social development is the realization of all human rights. In order to explore this premise as it relates to women and gender, this paper describes recent developments in human rights scholarship and practice that are leading to a greater understanding of a human rights approach to development. It proposes strategies for the re-characterization of women's economic and social development and explores the interrelationships between WID and human rights. For development researchers, practitioners, and policymakers, this analysis will represent a significant shift in thinking about the goals and objectives of WID by placing the substance of their work within an internationally recognized and legally-binding normative framework - a significant foundation that is currently absent from prevailing development approaches and activities.

In bringing a human rights approach to ensuring women's access to productive resources and improving their economic, social and political status, the field of WID will have come full-circle from its initial foundation of equity and non-discrimination. Bridging the gap between these two approaches is manifest in the declarations and platforms of the major international conferences which took place during the 1990s.

For further information contact: ICRW, 1717 Massachusetts Ave NW, #302, Washington DC 20036 USA; tel: 202 797 0007; fax: 202 797 0020; Internet: http://www.icrw.org; email: [email protected]

HUNGRY FOR WHAT Is RIGHT

FIAN MAGAZINE - FOR THE HUMAN RIGHT TO FEED ONESELF

Figure

FoodFirst Information Action Network (FIAN) is an NGO which publishes the magazine HUNGRY for what is right. The major focus of each magazine is the human right to feed oneself; specific issues, such as Progress of the right to food (No. 14/February 1999) and Human rights and sustainability (No. 15/June 1999) are addressed in FIAN's most recent publications. HUNGRY No. 14 discusses the increasing awareness regarding the fragile character of our environment and survival in dignity of future generations confronted with consequences of mismanagement of natural resources. The magazine's articles included "Sustainability as non-discrimination - a human rights approach to ecological concerns" where sustainability is described as a human rights principle in international human rights law; "A victory for sustainable development and for non-discrimination of future generations" focuses on the experience of a group of small farmers in the Philippines which saw their traditional farming area destroyed through industrial speculation; and "Agrarian reform for sustainability" demonstrates how to pave the way for sustainable development for future generations. HUNGRY No. 15 examined progress made toward the right to adequate food by reprinting AsbjEide's contribution to the FAO brochure The Right to Food in Theory and Practice", followed by the role of international institutions for the realization of the right to adequate food by Michael Windfuhr, Executive Director of FIAN. The NGO driven initiative, The Code of Conduct, is explained in detail as a practical tool on how governments can fulfil their obligations for the right to food. This issue also reports on violations of the right to feed oneself, and includes FIAN interventions and strategies to move the human right to food forward.

For more information about FIAN or to subscribe to HUNGRY contact: FIAN International Secretariat, PO Box 102243, D-69012 Heidelberg, Germany; tel: 49 6221 830620; fax: 49 6221 830545; email: [email protected]