Anthony Paul I I I Kearns Ther I

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Citation:
Anthony Paul III Kearns, The Right to Food Exists via
Customary International Law, 22 Suffolk Transnat'l L.
Rev. 223 (1998)
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THE RIGHT TO FOOD EXISTS VIA
CUSTOMARY INTERNATIONAL LAW
I. INTRODUCTION
For the first time in history, international agricultural

output exceeds the amount of food necessary to feed the
entire world.' Despite this monumental milestone, over
twenty-four people will die, either directly or indirectly
from hunger in the time it takes the average reader to
read this introduction.2 Chronic hunger has many victims. 3
It afflicts people by destroying their sense of self-dignity
and excludes them from a rightful place and participation
in the human community.'
The scourge of hunger not only impacts developing
countries, it affects the entire global community because
1. See infra notes 81-83 and accompanying text (noting food production
exceeds consumption); United Nations, ECONOMIC AND SOCIAL COUNCIL,
RIGHT TO ADEQUATE FOOD AS A HUMAN RIGHT, § 14, U.N. Sales
No.E.89.XIV.2 (1989) [hereinafter RIGHT TO ADEQUATE FOOD AS A HUMAN
RIGHT] (maintaining dietary energy supplies stand at ten percent more than
world population requires); see also Michael Chossudvsky, The Causes of Glob-
al Famine 5' Anniversary of the FAO, *2 (visited Jan. 26, 1998)
<http://www.hartford-hwp.com/archives/28/039.html> (noting historical signifi-
cance of world agriculture producers' ability to produce more food than physio-
logically necessary).
2. See RIGHT TO ADEQUATE FOOD AS A HUMAN RIGHT, supra note 1, at
§§ 8-10 (1989) (describing staggering problem and pervasive nature of world
hunger). For instance, at least one billion people throughout the world suffer
from chronic hunger in which eighteen children under the age of five die every
minute. See id.; see also Dr. Jacques Diouf, The Right to Food *1 (visited
Jan. 26, 1998) <http://www.faoorg/inside/dg/message.htm> (noting hunger's
omnipresence). As many as eighty-eight nations are low income food-deficit
countries: forty-two in Sub-Saharan Africa, nineteen in Asia and the Pacific,
nine in Latin America and the Caribbean, six Near East/North Africa and
twelve in Europe. See Food and Agricultural Organization, World Food Sum-
mit: Basic Information, *1 (visited Jan. 26, 1998)
<http://ffas.usda.gov/icd/summitbasic.html> (describing geographical compo-
nent of world hunger and need to curb hunger as estimates show hunger in-
creasing).
§§ 9-10 (1989) (describing hunger's direct impact on physical development,
health and death).
4. See The United Nations, Food for All *1 (1996) (describing destructive
force of hunger). As a result of chronic hunger, millions of people suffer
nutritional deficiencies that lead to blindness, retarded growth, and a lack of
energy. See Diouf, supra note 2, at *1 (describing persuasiveness of hunger).
224 SUFFOLK TRANSNATIONAL LAW REVIEW [Vol. 22:1
the global community exists within an ecosystem and oper-

ates as a universal economic system.5 This global world
mentality must perceive the larger consequences of hunger
as insidious and pervasive and in need of the international
communities' attention.6 The international community must
take steps to address the right to food as fundamental,
superseding any other right.7 Paradoxically, the internation-
al community violates the right to food more often than
any other right.8
This Note demonstrates the right to food exists as part
of customary international law by analyzing various trea-
ties, agreements, and United Nations Documents, specifi-
cally the United Nations Charter, the Universal Declaration
of Human Rights, the International Covenant on Economic,
Social and Cultural Rights, the International Covenant on
Civil and Political Rights, and, most recently, the World
Food Summit Declaration and Plan of Action. 9 Part II
discusses the modern historical development of these is-
sues." ° Part III explores the international recognition of
the right to food." Part IV addresses its impact."2 Part
5. See JACOBO SCHATAN & JOAN Gussow, FOOD AS A HUMAN RIGHT

114 (Asbjorn Eide et al. eds., 1984) (noting global interdependence and need
to address hunger to maintain socio-economic system); see id. at 22, 24 (noting
the socio-economic causes of hunger). Hunger can act as a warning sign of a
malfunctioning global economy. See Martin McLaughlin, The Hungry Seventh of
the World, AMERICA, May 3, 1997, at 1 (noting World Food Summit's attempt
to curb global hunger). Cf Louis B. Shon, The New International Law: Pro-
tection of the Rights of Individuals Rather than States, 32 AM. U.L. REV. 1, 3
(1982) (noting Roosevelt's call for social and economic rights to protect free-
dom). Roosevelt stated: "people who are hungry and out of work are the stuff
to which dictatorships are made." see id. He relied on the evidence that his
new deal curbed the economic and social chaos in the United States. See id.
6. See Pontifical Council Cor Unum, World Hunger - A Challenge for
All: Development in Solidarity, 26 ORIGINS 327-333 (1996) (noting universal
economic, political, technical, social, and ethical dimensions of hunger).
7. Cf. Philip Alston, International Law and the Human Right to Food, in
THE RIGHT TO FOOD 9 (Philip Alston and Katarina Tomasevski eds., Martinus
Nijhoff Publishers) (noting formal and universal recognition of right to food)
[hereinafter International Law and the Human Right to Food]; PHILIP ALSTON,
FOOD AS A HUMAN RIGHT 162 (Asbjorn Eide et al. eds., 1984) (recognizing
fundamental nature of right to food) [hereinafter FOOD AS HUMAN RIGHT];
Diouf, supra note 2, at *3 (describing right to food as "absolutely fundamen-
tal" without which no other rights have meaning).
8. See Alston, supra note 7, at 9 (noting paradox of exuberant endorse-
ments of right to food versus actual violations of right to food).
9. See infra Parts II-V (describing and analyzing United Nation documents
promulgating the right to food).
10. See infra Part II.
11. See itifra Part III.
1998] RIGHT TO FOOD VIA CUSTOMARY LAW 225
V analyzes why the right to food exists today as part of

customary international law.' 3 Part VI concludes that cus-
tomary international law, according to the principles of jus
cogens, obligates all nations to ensure the right to food."
This Note examines the history and development of the
right to food as a fundamental and established principal
within the context of customary international law."
II. HISTORY OF THE RIGHT TO FOOD
Historians have recorded the existence of hunger and a

right to food since ancient times, yet the world community
continues to fail to agree on the causes and remedies for
hunger.' 6 Historians cite to the concept of a right to food
in an array of cultures throughout the course of history. 7
The right to food has continued to evolve throughout the
course of the twentieth century with national constitutions
and universal documents continually proclaiming this
right.'" History, replete with laws, declarations, papal en-
12. See infra Part IV.

13. See infra Part V.
14. See infra Part VI.
15. See infra Parts II-V.
16. See Dinah Shelton, Symposium: International Law and World Food Hun-
ger: Commentary: The Duty to Assist Famine Victims, IOWA L. REV. 1309,
1309 (1985) (acknowledging recognition of right to food from ancient times to
present without insight into the elimination of hunger). Confucius listed food as
the first of eight responsibilities of any government. See id. The ancient Chi-
nese, Greeks, and medieval scholars addressed or implemented grain storage
policies to avoid the problems of hunger. See id.
17. See P. Spitz, Right to Food for Peoples and for the People: A Histori-
cal Perspective, in THE RIGHT TO FOOD 170-75 (Philip Alston and Katarina
Tomasevski eds., Martinus Nijhoff Publishers) (detailing history of right to food
among various cultures throughout history); see also ROBERT ROBERTSON,
HUMAN RIGHTS IN THE TWENTY-FIRST CENTURY A GLOBAL CHALLENGE, 451
(Kathleen E. Mahoney and Paul Mahoney eds. 1993) (recognizing concept of
food entitlement as ancient). The Old Testament prescribed people as bound to
provide for the poor and hungry. See id. Aboriginal societies have also devel-
oped norms that require the sharing of food. See id. China's history represents
4000 years of public policy relating to the production and distribution of grain.
See Spitz, supra, at 172 (providing background of right to food).
18. See ROBERTSON, supra note 17, at 452 (describing expansive and perva-
sive nature of right to food). There currently exists over one hundred docu-
ments that establish the right to food. See id.; see also infra notes 63-72 and
accompanying text. For example, India, Ireland, Nicaragua, and the Netherlands
have all made reference to the right to food in their constitutions. See ROBERT-
SON, supra note 17, at 452 (describing expansive and pervasive nature of right
to food).
cyclicals, and canons, calls for the fundamental right to

food for all people.' 9
A. Historical Background of Modem

International Human Rights
Karel Vasak, a French jurist, categorizes human rights

according to their historical evolution and places them in
one of three generations or categories.2' The First Genera-
tion, or negative rights, include political and civil rights
that limit governmental intervention on an individual's free-
dom.2 Second Generation rights, or positive rights, con-
sist of social, economic, and cultural rights that invoke
government involvement or action.' Third Generation
Rights call for the cooperation between developed and
developing nations.23 Various ideologies support either the
first or second category of rights exclusively, which has
led to a violation of human rights.24
An awareness and recognition of modern international
human rights began in the 1940s.' Prior to the 1940s,
19. See Spitz, supra note 17, at 171-75 (noting background of right to food
including cannons, treaties proclamations and books); see also ROBERTSON,
supra note 17, at 451-52 (detailing right to food in international law); see also
HENRY J. STEINER AND PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN
CONTEXT LAW, POLITICS, AND MORALS, 257 (1996) (noting that papal encycli-
cals have long called for right to sustenance).
20. See KEVIN T. JACKSON, CHARTING GLOBAL RESPONSIBILITIES LEGAL
PHILOSOPHY AND HUMAN RIGHTS 16 (1994) (describing three generations of
Human Rights).
21. See id. at 16 (defining first generation rights). Legal Theorists often
consider political and civil rights negative rights because they limit governmen-
tal action. See id. These rights primarily affect the relationship between the
individual and the state. See id. Typical examples of First Generation rights in-
clude "freedom from torture, slavery, cruel and unusual punishment . . . and
exile." See id.; see also Shon, supra note 5, at 32 (describing first Generation
rights).
22. See JACKSON, supra note 20, at 16 (defining Second Generation Rights);
see also Shon, supra note 5, at 33-34 (describing Second Generation Rights).
Legal Theorists believe social and economic rights originated during the Rus-
sian Revolution. See id.
23. See JACKSON, supra note 20, at 17 (defining Third Generation Rights);
see also Shon, supra note 5, at 48 (describing Third Generation Rights).
24. See infra, notes 35-39 and accompanying text (noting United States'
preference for promotion of rights against government and Soviet Union's
preference for promotion of action rights by government).
25. See FRANK NEWMAN AND DAVID WEISSBRODT, INTERNATIONAL HUMAN
RIGHTS 1 (1990) (noting development of modern international human rights);
see also Shon, supra note 5, at 1 (describing radical change of modern interna-
national governments commonly held that individuals did

not possess rights under international law and the interna-
tional community dared not interfere with a sovereign
states' mistreatment of its own people.26 Immediately prior
to World War II, President Franklin Delanor Roosevelt
laid the foundation for modern international human
rights.21 In his famous "Four Essential Human Freedoms"
address of 1941 he discussed: Freedom of speech and
expression, freedom of worship, freedom from want, and
freedom from fear. 2 1 President Roosevelt's vision, juxta-
posed against the background of a world at war, enhanced
the world's appetite for human rights.29
Germany's inhumane acts against both its own citizenry
and that of conquered nations, coupled with its refusal to
recognize policies as a matter of international concern,
sparked the world community to address the issues of a
sovereign's abuse of power.3" As World War II came to
a close it became evident that the victorious allied forces
would need to develop international law to prevent states
from exercising sovereign power to impose human rights
violations on individuals. 3 The Nuremberg Trials offer an
example of the world community's shift in attitude.32 The
tional human rights).

26. See Shon, supra note 5, at 9 (noting supremacy of sovereign states).
The rise of international human rights has led to the limiting of absolute power
within sovereign states. See id.
27. See id. at 35 (noting President Roosevelt's idea of freedom from want
helped creation of International Bill of Human Rights).
28. See NEWMAN & WEISSBRODT, supra note 25, at 36 (1990) (detailing
President Roosevelt's promotion of socio-economic rights). On January 6, 1941
President Roosevelt, in his annual State of the Nation Address to Congress,
spelled out his vision for the future rooted in the "four essential human free-
doms. See id. Toward the end of World War II Roosevelt returned to the
theme of "Four Essential Freedoms" in his January 11, 1944 State of the
Union Address. See id.
29. See NEWMAN & WEISSBRODT, supra note 25, at 362-63; see also Shon,
supra note 5, at 34-36 (noting President Roosevelt's call for a "moral order"
in response to World War 1I).
30. See NEWMMAN & WEISSBRODT, supra note 25, at 1-2 (describing con-
sequences of Hitler's reign of terror arising out of international indifference).
Fifty million people were killed as a result of World War II, and the deaths of
twelve million people in the Holocaust illustrated the desperate need for inter-
national codification of human rights. See id.
31. See id. (noting international resolve to avoid repetition of Nazi era
human rights abuses).
32. See STEINER & ALSTON, supra note 19, at 99-101 (describing formation
and utilization of Nuremberg Trials to aggressively punish human rights viola-
Nuremberg Trials changed customary international law doc-

trines by broadening them from a law limited to the gov-
ernance of war to jurisdiction over "crimes against peace"
and "crimes against humanity. " " The rights proclaimed by
President Roosevelt, supported by the Nuremberg Trials,
became clouded when the threat of war disappeared and
the victorious nations wanted to avoid self-incrimination for
their own abuses of human rights.34
The Cold War brought another shift in the international
approach to human rights.35 The United States promoted
First Generation rights while the Soviet Union argued for
the advancement of Second Generation rights. 6 The strug-
gle between these opposing ideologies interfered with uni-
versal acceptance of First and Second Generation rights as
a unified approach to human rights and encourages the
tors). The London agreement entered into by the U.S., U.S.S.R., Britain, and
France on August 8, 1945, 59 Stat. 1544, E.A.S. No. 472, set forth the
Nuremberg trials. See id. at 100. The allied powers formulated the Nuremberg
trials to address Germany's barbaric acts. See id. The trials have become sig-
nificant in the history of human rights because these trials took immediate and
swift action to punish both states and individuals for their human rights viola-
tions. See id.
33. See STEINER & ALSTON, supra note 19, at 99-101 (noting evolution of
international law beyond war crimes in defining crimes of World War 11). The
charter, annexed to the agreement creating the Nuremberg Trials established
three types of crimes punishable by international law. See id. The crimes as
stated by the Charter are: Crimes against Peace, War crimes, and Crimes
against Humanity. See id.; see also infra Part V (defining customary interna-
tional law).
34. See THOMAS BUERGENTHAL, INTERNATIONAL HUMAN RIGHTS IN A
NUTSHELL 18 (1994) (noting Allied powers hesitation to enter into a human
rights agreement for political reasons because each had its own human rights
abuses or issues to contend with). The Soviet Union would suffer from its
Gulag, the United States struggled with racial discrimination and both France
and Britain maintained colonies replete with human rights abuses. See id.
35. See ASBJORN EIDE, HUMAN RIGHTS IN THE TWENTY-FIRST CENTURY A
GLOBAL CHALLENGE 460-461 (Kathleen E. Mahoney & Paul Mahoney eds.
1993) (describing Cold War's effect on international human rights).
36. See id. (noting ideological differences between United States and Soviet
Union). Human rights, according to western philosophy, run against the govern-
ment in terms of the individual being free from governmental action. See gen-
erally, Goler Teal Butcher, Symposium: 1986, World Food Day Food and Law
Conference: "The legal Faces of the Hunger Problem," 30 How. L.J. 193, 6
(1987) (discussing food as human right within context of western human rights
law). Civil and Political rights represent the bulk of the rights of individuals
against their government. See id. The Soviet Union with its "command
economy" operated under the premise that it needed to curb civil and political
rights to adequately provide economic and social rights. See EIDE, supra note
35, at 461.
violation of both sets of rights.37 Throughout the Cold

War the United Nations has consistently endorsed the
interdependence of civil and political rights with economic
and social rights.38 Despite the ideological rift between
East and West, the United Nations has called for the
universal protection of both sets of rights.39
B. History of the Emanation of Human Rights Through

the United Nations Charter and the International Bill of
Human Rights and Supporting Documents
Beginning in 1945, the United Nations stressed the need
for codification of international human rights.' The codi-
fication process consisted of: The inclusion of international
concern about human rights in the United Nations Charter,
listing human rights in the Universal Declaration of Human
Rights (UDHR), further elaborating those rights in the
International Covenant on Civil and Political Rights
(ICCPR), the International Covenant on Economic, Social,
and Cultural Rights (ICESCR), and the promulgation of
additional declarations and conventions concerning human
rights.41 This process laid the groundwork for the modern
universal human rights system, as established in the United
Nations Charter (Charter) and the International Bill of
Rights.42
The Charter, "the constitution of the world," expressly
prevails over all other treaties and laws. 43 The Charter,
37. See id. at 460 (noting schism between Soviet Union and United State
has interfered with promotion of all human rights).
38. See STEINER & ALSTON, supra note 19, at 1127 (discussing Cold War's
effect on interdependence of First and Second Generation Rights).
39. See id.
40. See id. at 118 (noting U.N. through its promulgation of human rights
documents initiated and fueled human rights movement). Since its inception the
U.N. has promoted the development of the human rights movement. See id.
41. See Shon, supra note 5, at 11-12 (describing codification process of
modern human rights).
42. See id. at 12. The Charter, the UDHR, the ICCPR, the ICESCR, and
the adoption of subsequent declarations and covenants make up the International
Bill of Human Rights. See id.
43. See id. at 13-14 (describing Charter hierarchically as prevailing ex-
pressly over all other treaties and laws throughout world). The U.N. Charter
entered into force on June 26, 1945. See NEWMAN & WEISSBRODT, supra note
28, at 2. The Charter exists as a permanent document and its makers intended
that future law makers not easily amend it rather the drafters intended the
which established the United Nations mission as securing

and maintaining peace, relied on the precedents established
in the post-World War II Nuremberg Tribunal in which
international law prosecuted "crimes against peace" rather
than mere regulation of conduct in warfare.' International
law did little beyond regulating the conduct of warfare
until the Nuremberg trials introduced the concept of the
"justice or legality" of war.45 The drafters of the Charter,
influenced by the Nuremberg Trials, recognized the exis-
tence of individual human rights but provided little detail
into the meaning of such rights.46 Despite the Charter's
limited consideration of human rights, the mere insertion of
human rights into the document helped lay the foundation
for modern international human rights law. 7
charter have a flexible enough quality to remain a lasting expression of the

needs of humanity throughout the generations. See Shon, supra note 5, at 14
(describing adjustable nature of Charter). The U.N. Charter stood "to reaffirm
faith in fundamental human rights, in the dignity and worth of the human per-
son, [and] in the equal rights of men and women and of nations large and
small." See NEWMAN & WEISSBRODT, supra note 28, at 2 (quoting U.N.
Charter Preamble).
44. See STEINER & ALSTON, supra note 19, at 118 (demonstrating
Nuremberg Tribunal's influence over creation of Charter); see also supra note
33 and accompanying text. The Nuremberg Tribunals introduced for the first
time the concept of international law securing peace. See STEINER & ALSTON,
supra note 19, at 118.
45. See STEINER & ALSTON, supra note 19, at 118 (describing Charter's
effect on broadening capacity of international law beyond mere regulation of
war).
46. See STEINER & ALSTON, supra note 19, at 118 (recognizing Charter's
limited direct mention of human rights).
47. See BUERGENTHAL, supra note 34, at 18 (noting significance Charter
has had in development of international human rights law despite minimal di-
rect coverage). The Charter's limited coverage of human rights seemed to
ignore Roosevelt's proclamation for individual human rights illustrated in his
"Four Freedoms" speech. See id. However, the victorious nations of World
War II hesitated to support clearly defined individual human rights because they
themselves were guilty of such violations. See id. (noting reason for limited
explicit coverage of human rights). Despite the limited direct attention paid to
human rights the Charter's introduction to human rights created strong prece-
dent for future human rights legislation. See STEINER & ALSTON, supra note
19, at 119 (noting Charter's mention of Human rights appears in "vital con-
texts"). The charters referral to human rights refer to and promote the purpos-
es and goals of the United Nations such as "encouraging respect for Human
Rights." See Id. at 119 (quoting Article 1(3) of the Charter). The Charter set
forth that human rights are of International Concern and that the United Na-
tions has a duty to promote "universal respect for, and observance of, human
rights and fundamental freedoms for all without distinction as to race, sex,
language and religion." See Shon, supra note 5, at 14 (quoting United Nations
Charter Art. 55 (c).
The drafters of the Charter allowed the Charter to enter

into force without the incorporation of a bill of rights to
detail human rights because the drafters agreed that a sep-
arate document should undertake that task.4" To accom-
plish the goal of establishing a bill of human rights, the
United Nations established the Commission on Human
Rights (Commission) in 1946. 4" The members of the
Commission were split on what legal form the draft bill of
rights should take.50 Some members argued that the
UDHR should simply be a "declaration" and serve as a
recommendation to Member States and exert moral and
political influence over the Member States. 1 Other Mem-
bers called for a legally binding document ratified by the
Member States. 2 The Commission chose the former and,
on December 10, 1948, the General Assembly unanimously
approved the UDHR 3
Even though the Commission intended the UDHR to
have political and moral force only, the UDHR has be-
come a legally binding document.14 Whatever ambiguities
48. See Shon, supra note 5, at 14-15 (recognizing promise made to address
issue of Human rights via International Bill of Human Rights).
49. See Shon, supra note 5, at 14-15 (recognizing Commission's re-
sponsibility in developing International Bill of Human Rights); see also id. at
18 (stating that Charter laid out legal and conceptual foundation for modern
international Human Rights law.) Article 68 of the Charter provided for the
Economic and Social Council (ECOSOC). See STEINER & ALSTON, supra note
19, at 119 (noting creation of ESOSOC). The United Nations authorized the
ECOSOC to set up a commission for the promotion of human rights known as
the Commission on Human Rights. See id. The Commission had the task of
submitting reports and proposals on an International Bill of Rights. See id. This
commission determined that a declaration of general principles should be estab-
lished first and then it would promulgate documents containing more precise
obligations. See Shon, supra note 5, at 15 (noting commission's urgency to
produce a declaration for adoption by General Assembly).
50. See STEINER & ALSTON, supra note 19, at 119 (detailing Commissions
development of UDHR).
51. See STEINER & ALSTON, supra note 19, at 119 (detailing commissions
52. See STEINER & ALSTON, supra note 19, at 118 (detailing Commissions
53. See STEINER & ALSTON, supra note 19, at 119 (detailing history of
UDHR).
54. See Shon, supra note 5, at 15-16 (describing ambiguity regarding legal
effect of UDHR to its ultimate authoritative value). Various delegations to the
UDHR held different interpretations as to the binding effect of the document
and its ability to impose legal obligations. See id. at 15 (noting many interpre-
tations of effect and weight of UDHR). Some promoted the idea that the
UDHR was not a treaty and thus could not impose any legal obligations. See
id. Other delegations argued that the UDHR was a continuation of the Charter
existed at the inception of the UDHR, governments have

consistently invoked and cited to the UDHR in presenting
arguments before the General Assembly of the United Na-
tions." The continual reliance on the UDHR by various
governments established strong precedent and made the
UDHR an authoritative interpretation of the Charter and
the UDHR has become a part of the constitutional struc-
ture of the world community.56 The UDHR, now an inte-
gral component of the Charter, is a part of customary in-
ternational law and has binding effect on all states."
The Commission initially intended to list the international
human rights, and then focus its attention on clarifying the
precise obligations of governments to those rights. 8 To
and that it should hold the same weight as the Charter. See id. The latter
argued that the UDHR merely expressed rules that were already recognized by
Customary International Law and therefore had binding effect. See id. One of
the principal authors of the UDHR, Professor Cassin, explained that the UDHR
was:
destined to guide governments in the determination of
their policy and their national legislation, that it could be
considered as an authoritative interpretation of the Charter
of the United Nations and as a common standard to
which the legislation of all member states of the United
Nations should aspire, and that it was the development of
the Charter which had brought human rights within the
scope of positive international law.
See Shon, supra note 5, at 15.
55. See Shon supra note 5, at 16-17 (noting acceptance of UDHR as part
of U.N. Charter). Various states created precedent when these states invoked
the UDHR against other states holding that the other state's action did not
conform to the Charter. See id. at 16. The invoking government would cite to
articles in the UDHR. See id. at 16. An example of this occurred when the
United States government invoked the UDHR against the Soviet Union, in the
Russian Wives case, for the Soviet's refusal to permit Soviet wives of foreign
husbands to leave the country. See id. The General Assembly declared that the
Soviets actions violated the Charter and the Assembly cited articles 13 and 16
of the UDHR. See id.
56. See Shon, supra note 5, at 16 (noting acceptance of UDHR as accepted
international law). Subsequent U.N. declarations have reinforced precedent, obli-
gating all states to observe the UDHR. See id. In particular, in 1968, the Dec-
laration of Tehran held that the UDHR "states a common understanding of the
peoples of the world concerning the inalienable and inviolable rights of all
members of the human family and constitutes an obligation for the members of
the international community." Id. Subsequently in 1975, the Helsinki Final Act
demonstrated an agreement between the participating states of Western Europe,
North America, and Eastern Europe to "act in conformity with the purposes
and principles of the charter of the United Nations and with the Universal
Declaration of Human Rights." Id.
57. See Shon, supra note 5, at 16-17 (recognizing established authority of
UDHR via customary international law).
58. See Shon, supra note 5, at 19 (noting completion of UDHR and com-
this end, the Commission divided the UDHR rights into

two areas: Civil and political rights, and economic and so-
cial rights." The Commission promulgated two separate
covenants to embody each category of rights: The Interna-
tional Covenant on Civil and Political Rights (ICCPR) and
the International Covenant on Economic, Social and Cul-
tural Rights (ICESCR). 6' The General Assembly agreed to
recognize the dichotomy of rights as long as the rights
remain indivisible, interdependent, and receive equal protec-
tion." The language set forth by the ICESCR and the
mencement of covenants).
59. See Shon supra note 5, at 19-20 (noting need to divide materials of
UDHR into two categories). The Commission found it impractical to formulate
all the rights listed in the UDHR into one document. See id. at 20. The
UIHR recognized two separate sets of Human rights: the economic and cultur-
al rights and the more traditional civil and political rights. See STEINER &
ALSTON, supra note 19, at 256. The commission chose to separate the two sets
of rights for two major reasons. See EIDE, supra note 35, at 460 (describing
rational for creating two separate documents with regards to human rights). The
first required two separate sets of rights because each needed different kinds of
implementation and approaches at a national level. See id. The negative charac-
ter of political and civil rights allowed immediate implementation without cost
but the positive character of economic and social rights required gradual imple-
mentation with cost. See id. The second centered around political consider-
ations. See id. at 461. The Commission feared that individual nations might be
willing to ratify civil and political rights and not Economic and Social rights.
See id. at 461. Some states were unwilling to commit to a binding instrument
if it meant being bound to social and economic rights because they argued such
rights could only be secured through a strong economy and not by a mere
document. See Shon, supra note 5, at 48-49. These political considerations
have proved faulty because through the present date, no case exists in which a
state has ratified the ICCPR but not the ICESCR. See EWiE, supra note 35, at
461.
In a few cases where only one of the covenants were ratified, it was the
ICESCR and not the ICCPR that was ratified. See id. The United States is the
only state likely to ratify only the ICCPR and it has yet to do so. See Id. at
461. The cold war ideologies of East and West fueled the resistance to univer-
salize either category of rights. See supra notes 34-39 and accompanying text
(discussing opposing ideologies of Capitalism and Communism). The economy
developed by the Soviet Union throughout the Cold War could not operate if
political and civil rights were honored. See EIDE, supra note 35, at 461. The
United States has held that the recognition of economic and social rights con-
fuses the priorities of human rights and that it is easy to exploit such rights to
excuse violations of civil and political rights. See Philip Alston, U.S. Ratifi-
cation of the Covenant on Economic, Social and Cultural Rights: The Need for
an Entirely New Strategy, 84 AM J. INT'L L. 365, 373 (1990) [hereinafter The
Need for an Entirely New Strategy].
60. See Shon, supra note' 5, at 27 (noting development of two covenants to
promote political, civil, social and economic rights).
§ 40 (noting General Assembly affirmation of indivisibility of both sets of
rights). The General Assembly has frequently reaffirmed the interdependence of
ICCPR mirror each other to the extent that they reflect an

interdependence of the two sets of rights and demonstrate
that the two covenants can neither "logically nor practical-
ly" exist apart from one another. 62
The world community, currently engaged in the fourth
stage of the codification of human rights, works at the
promulgation of additional human rights covenants, conven-
tions, summits, and declarations.63 The U.N. continues to
encourage and further clarify the Universal Bill of Human
Rights by promulgating subsequent documents in an effort
to bring the Universal Bill of Human Rights into full real-
ization.' 4 In an effort to actualize the "Right to Food"
granted by the U.N. Charter, the UDHR, the IECSCR and
the ICCPR, the world community has continued to address
the issue in over one hundred instruments relevant to the
right to food's definition and establishment as a human right.'
the two sets of human rights. See id.; see also Henry J. Richardson, III, Sym-
posium: 1986 World Food Day and Food: The Legal Faces of the Hunger
Problem": 1I. The Right to Food: The International Perspective: Panel 1: "The-
ory": The International Human Rights Response, 30 How. L.J. 233, 234,35
(1987) (noting General Assemblies call for equal protection of rights under both
categories); see EIDE, supra note 35, at 460 (noting all rights listed exist as
totality of rights and interdependent). The main difference between the two
covenants was that the ICCPR was to have immediate effect upon its coming
into force and to provide a remedy to those whose rights were violated. See
Shon, supra note 5, at 19. The ICESCR requires that only signatories take
steps, to the maximum of their available resources, to abide by the covenant.
See id. at 27. This would allow a country to abide by the covenant based on
its resources where the ICCPR lacked such a subjective clause. See id. at 27.
Despite the General Assembly's call for interdependence between both sets of
rights some argue that the strongly entrenched ideologies of the Cold War only
permitted mere lip service to the interdependence. See STEINER & ALSTON,
supra note 19, at 1127; see also infra notes 34-39 and accompanying text. The
General Assembly adopted the ICESCR in December 1966 and it entered into
force on January 3, 1976. See id. at 263. Ninety-seven states have ratified the
ICESCR. See EIDE, supra note 35, at 461. The General Assembly adopted the
ICCPR in 1966 and it entered into force on March 23, 1976. See Shon, supra
note 5, at 12. Ninety-two states have ratified the ICCPR. See EIDE, supra
note 35, at 461.
62. See STEINER & ALSTON, supra note 19, at 263 (noting language of
covenants demonstrates their interdependence).
63. See Shon, supra note 5, at 11-12 (noting stages of codification of hu-
man rights).
64. See Shon, supra note 5, at 11-12. Subsequent to the promulgation of
the U.N. Charter, the UDHR, the ICSPR, and the ICESCR multiple declara-
tions and conventions have reinforced human rights. See id; cf. EIDE, supra
note 35, at 452 (noting challenge of bringing human rights into realization).
65. See generally KATARINA TOMASEVSKI, THE RIGHT TO FOOD GUIDE
THROUGH APPLICABLE INTERNATIONAL LAW (1987) (listing chronologically
international instruments granting right to food). Apart from the basic provi-
The world Community's most recent attempt to realize

the Right to Food transpired at the 1996 World Food
sions in the International Bill of Human Rights the concern for a right to food
appears in the following contexts:
Freedom from Hunger, safeguarding of the right to food
in armed conflict, providing food for refugees, disaster
relief, providing food, access to food and adequate nutri-
tion, minimum wages, social security and social assis-
tance, adequate nutrition for infants, consumer protection,
food strategy, population policy, natural resources, fisher-
ies, prohibition of slavery and forced labor, special cate-
gories of agricultural workers, education and vocational
training in agricultural workers, education and vocational
training in agriculture, rural organizations and associa-
tions, elimination of discrimination against women, elimi-
nation of racial and ethnic discrimination and the rights of
indigenous peoples.
RIGHT TO ADEQUATE FOOD AS A HUMAN RIGHT, supra note 1, at §§ 19-20.
Several documents subsequent to the International Bill of Human Rights have
directly addressed the right to food including, The Universal Declaration on the
Eradication of Hunger and Malnutrition adopted by the World Food Conference
in 1974 and endorsed by the General Assembly later that year; others have
addressed it indirectly including: The Declaration of the Rights of the Child
adopted by the General Assembly in 1981. See id. 62-63
The Food and Agricultural Organization's (FAO) constitution holds
The Nations are determined to promote the common
welfare by furthering separate and collective action on
their part for the purpose of: raising levels of nutrition
and standards of living of the peoples under their respec-
tive jurisdictions; securing improvements in the efficiency
of the production and distribution of all food and agricul-
tural products; bettering the condition of rural populations;
and thus contributing toward an expanding world economy
and ensuring humanity's freedom from hunger.
The United Nations, Food for All 1-3 (1996) [hereinafter Food For All]. Since
its inception the FAO has promoted agriculture as the key to increasing food
availability because it not only serves as a means of production but also as the
majority employer in most developing countries and therefore provides income
and food. See id. The FAO introduced the idea of Food Security and defined
it as "ensuring that all people at all times have access to the food they need
for a healthy active life." Id. Food Security happens when access to food is
available year round and affordable to all people. The United Nations, Food
for All 1-3 (1996). Therefore the FAO contends that while production is vital
to world security the availability of food to all peoples within in a region
holds an equal level of importance. See id. "An adequate national food supply
has to be coupled with appropriate marketing facilities, equitable rural develop-
ment policies and, most important, adequate means of production or income-
generating opportunities for poor." See The United Nations, Food for All 1
(1996). In 1983 the FAO adopted three guidelines with respect to food securi-
ty: (1) "improving access to food, particularly for the poor; (2) ensuring ade-
quate food availability; and, (3) enhancing the stability of food supplies." Id.
The FAO reaffirmed its commitment to the right to food in the 1992 Decla-
ration of Barcelona which calls for the mobilization of international organiza-
tions, government authorities, non governmental organizations and all individuals
to pursue the right to food for all. See id.
Summit.' The World Food Summit convened in Rome to

reaffirm the global commitment to the elimination of hun-
ger.6' One of the principle themes of the World Food
66. See generally United Nations Department for Policy Coordination and
Sustainable Development, Outcome of the World Food Summit, Including Action
to Be Taken to Follow Up the Outcome at All Appropriate Levels, *2 [herein-
after Outcome of the World Food Summit] (visited Jan. 26, 1998) <go-
pher://gopher.unorg/OO/ga/docs/52/plenary/A52-132 EN> (providing background
information to World Food Summit).
67. See id. (providing background information to World Food Summit). The
members of the 27' Session of the FAO Conference in November 1993 were
dismayed by the present and future prospects for World Hunger. See id. This
conference held that the world community must take "immediate action" to
secure food, nutrition throughout the world. See id. In the wake of this confer-
ence the Director-General of the FAO consulted various delegations and heads
of state from around the world on the need to develop, promote and convene a
world food summit. See id. The purpose of the World Food Summit strove to
formulate strategies on how to eliminate the causes of hunger and to remedy
hunger in general. See Food and Agricultural Organization, World Food Sum-
mit: Basic Information *2 (visited Jan. 26, 1998) [hereinafter World Food
Basic] <http://ffas.usda.gov/icd/summit/basic.html>. The FAO believed the
Summit would bring a great deal of attention to the problems of hunger and
become a public policy issue. See id. By November 1995, eighty nations had
committed to support the World Food Summit. See id. at *3.
The FAO organized the World Food Summit to renew the 1974 World
Food Conference's proclamation that "every man, woman and child has the
inalienable right to be free from hunger and malnutrition in order to develop
there physical and mental faculties." Id. at *1 (providing background to World
Food Sunimit). The World Food Summit came to fruition at the end of a
century in which hunger prevailed in the majority of regions throughout the
planet and the prospects of curbing hunger remained grim if current practices
and policies continued. Nicholas Eberstadt, Starved for Ideas: Misconceptions
that Hinder the Battle Against World Hunger, VITAL SPEECHES, Mar. 1, 1997,
at 298. The Twentieth Century was a Century of Paradox:
[A] time of extraordinary wonder and horror. [One in
which] we can marvel at the tempo of technical advance,
even as the global gap between what can be done and
what is being done grows ever wider. [It is a] century
when the formula for attaining mass affluence was finally
perfected [and at the same time a century when] more
people [would] perish from famine than ever before.
Id.
One hundred and eighty-five countries along with the European Communi-
ty were accredited to the summit in which they promulgated the Rome Decla-
ration on World Food Security (the Rome Declaration) and the World Food
Summit Plan of Action (Plan of Action). See Outcome of the World Food Sum-
mit, supra note 66, at *5 (detailing outcome of World Food Summit). One
hundred and eighty-six heads of delegations at the summit adopted the Rome
Declaration and Plan of Action. See id. Of the One hundred and eighty-six
participating countries forty-one were represented at the level of head of state,
fifteen at the level of Deputy Head of State, forty-one at the level Head of
Government, and fifteen at the level of Deputy Head of Government. See
Report of the World Food Summit, (visited Jan. 26, 1998) *5
<http://WWW.FAO.ORG/WFS/final/rep-l-e.htm#date01> (setting forth partici-
pants of World Food Summit). In addition seventy-four other high level repre-
1998) RIGHT TO FOOD VIA CUSTOMARY LAW 237
sentatives participated in the Summit on behalf of the remaining countries. See

id.
In an effort to bring the Universal Bill of Human Rights into realization
the FAO relied on consultations with governments, intergovernmental and non-
governmental organizations and the private sector in promulgating the Declara-
tion and Plan of Action. See World Food Basic, supra, at *2. In resolution
95/2 the FAO entrusted the Committee on World Food Security to prepare a
draft of the Declaration and Plan of Action. See id. A great deal of negotia-
tion by various organizations of the U.N. led to the refinement of the docu-
ment. See Outcome of the World Food Summit, supra note 66, at *4. The
FAO strove to keep the negotiation process, as well as the Summit itself as
flexible, efficient and cost effective. See id. The preparation included a wide
range of consultations with various governments, intergovernmental as well as
non governmental organizations in the private sector. See id. at *2. The World
Food Summit Declaration asserts the right to food for all people. See Rome
Declaration on World Food Security and World Food Summit Plan of Action,
(visited Jan. 26, 1998) *1 <http://.fao.org/wfs/final/rd-e.htm> [hereinafter
Rome Declaration on World Food] (asserting right to food).
We the heads of state and Government, or our representa-
tives, gathered at the World Food Summit at the invita-
tion of the Food and Agriculture Organization of the
United Nations, reaffirm the right of everyone to have
access to safe and nutritious food, consistent with the
right to adequate food and the fundamental right of every-
one to be free from hunger.
Rome Declaration on World Food, supra, at *1. Several countries, governments
and non-governmental organizations from different regions around the world
prepared position papers in preparation of the World Food Summit. See Out-
come of the World Food Summit, supra note 66, at *3.
These position papers allowed various governments to address the issue of
food security from a national and international perspective. See id. The position
papers additionally gave each country the opportunity to state and support its
position with regards to food security. See Pontifical Council Cor Unum, supra
note 6, at 327 (demonstrating use of position paper to advance countries phi-
losophy on food security). The Non-Governmental Organizations, made up of
over 1,200 organizations from eighty countries located in various regions
around the world, were given the opportunity to give a consolidated statement
representing the results of the Non-Governmental Organization Forum
(NGO),which proposed a new model for achieving food security. See NGO
Forum to The World Food Summit, Profit for Few or Food For All *1 (visited
January 26, 1998) http://free.rmnet.it/ - ngoforum/sengl.htm (detailing NGO's
statement). Regardless of the idiosyncrasies exhibited by the multiple govern-
ments and non-governmental organizations, these position papers demonstrated
the world communities commitment to addressing world hunger and food secu-
rity in the spirit of the U.N. Charter and the Universal Bill of Human Rights.
See Outcome of the World Food Summit, supra note 66, at *10.
Fourteen Technical papers and a technical atlas were prepared for the
world food Summit by the FAO. See id. at *3 (noting FAOs preparation of
fourteen technical papers used as basis for decision making throughout World
Food Summit). The FAO Secretariat staff prepared the technical papers and
relied on other U.N. agencies, intergovernmental organizations, academic insti-
tutions, non-governmental organizations, and private institutions in its prepara-
tion. See id. These technical papers formed the analytical basis for the Declara-
tion and the Plan of Action. See id. The Fourteen papers are entitled as fol-
lows: Food, Agriculture and Food Security: Developments Since the World
Summit explained that "demography" alone does not cause

inadequate distribution of food sources.' The World Food
Summit Declaration provides for seven commitments that
serve as the basis for achieving sustainable food security
for the entire global community.' The World Food
Food Conference and Prospects; Success Stories in Food Security; Socio-politi-

cal and Economic Environment for Food Security; Food Requirements and
Population Growth: Food Security and Nutrition; Lessons form the Green Rev-
olution: Towards a New Green Revolution; Food Production: the Critical Role
of Water; Food Consumers: Marketing, Processing and Distribution; Role of
Research in Global Food Security and Agricultural Development; Investment in
Agriculture: Evolution and Prospects; Food Production and Environmental Im-
pact; Food and International Trade; Food Security and Food Assistance; Assess-
ment of Feasible Progress in Food Security. See Outcome of the World Food
Summit, supra note 66, at *4.
The Director General of the FAO declared the Summit open and H.E.
Romano Prodi wa's named as the chairman of the Summit. See Report of the
World Food Summit, supra, at *2-3 (noting opening of World Food Summit).
Several speakers addressed the Summit and made statements concerning world
hunger. See id. at *6 (listing speakers to address World Food Summit). The
Speakers included his Holiness Pope John Paul II, H.E. Oscar Luigi Scalfaro
(President of the Italian Republic) H.E. Boutros Boutros-Ghali (Secretary-Gener-
al of the United Nations), Mr. Jacques Diouf (Director-General of FAO), H.E.
Roomano (President of the coucil of Ministers of the Italian Republic and
Chairman of the World Food Summit), Mr. Francesco Rutelli (Mayor of
Rome, H.E. Jose Ramon Lopez Portillo, (Independent Chairman of the FAO
Council), H.E. Pedro Medrano Rojas, Chairman of the FAO Committee on
World Food Security). See id.
The Delegates to the Summit adopted unanimously the Declaration and the
Plan of Action, the former preceded the latter and reaffirmed the right to food.
See Rome Declaration on World Food, supra, at * 1-2.
68. Cf Rome Summit Asks: Is Food 'Right' or 'Goal?', NATIONAL CATHO-
LIC REPORTER, Dec. 6, 1997, at 9 (quoting from Pope's inaugural address to
World Food Summit). His Holiness Pope John Paul II gave the inaugural ad-
dress to the World Food Summit and called for the commitment and promotion
of a Right to Food. See id. The Pontiff called for the abandonment of popula-
tion control policies noting that there is ample food for all in the world stating
that: "Demography alone does not explain the inadequate distribution of food
sources." See id. John Paul II called for an end to the "sophist view that
when there are many, one is condemned to be poor." See id. The Pope took a
similar position to the NGOs in holding that a large population instead of being
a burden for developing countries "may reveal itself as a source of develop-
ment." See Dipankar De Sarkar, Food Summit: Overpopulation Not the Prob-
lem-Pope, * 1 (visited January 26, 1998) <http://infobot.link.no/IPA/art/
NOLang/NoS.. .No ServiceROMATVV/96/11/13/13.03 059.HTML> (noting
Pontiff's assertion that large populations can improve food security as opposed
to hindering it). The Pope's statement relies on the concept that a large popu-
lation "as a source of development" could imply "training and a source of
goods." See id.
69. See Rome Declaration on World Food, supra note 67, at *3 (listing the
Seven commitments). The Seven commitments declared by the World Food
Summit are as follows:
We will ensure an enabling political, social, and economic
environment designed to create the best conditions for the
Summit's Plan of Action calls for objectives and actions

relevant to the implementation of the commitments in food
security at the "individual, household, national, regional
and global levels." '7 The World Food Summit established
the goal of eliminating hunger in all countries and, more
specifically, seeks to reduce the number of undernourished
people in half by the year 2015."' The goals pronounced
at the World Food Summit conform with the United
eradication of poverty and for durable peace, based on

full and equal participation of women and men, which is
most conducive to achieving sustainable food security for
all; We will implement policies aimed at eradicating
poverty and inequality and improving physical and eco-
nomic access by all, at all times, to sufficient, nutritional-
ly adequate and safe food and its effective utilization; We
will pursue participatory and sustainable food, agriculture,
fisheries, forestry and rural development policies and
practices in high and low potential areas, which are es-
sential to adequate and reliable food supplies at the
household, national, regional and global levels, and com-
bat pests, drought and decertification, considering the
multifunctional charter of agriculture; We will strive to
ensure that food, agricultural trade and overall trade
policies are conducive to fostering food security for all
through a fair and market-orientated world trade system;
We will endeavor to prevent and be prepared for natural
disasters and man-made emergencies and to meet tran-
sitory and emergency food requirements in ways that
encourage recovery, rehabilitation, development and a
capacity to satisfy future needs; We will promote optimal
allocation and use of public and private investments to
foster human resources, sustainable food, agriculture fish-
eries and forestry systems, and rural development, in high
and low potential areas.
See id.
The Delegates held that the "character of food security" requires national
and international efforts in agreeing to the seven Commitments. See id. at 3.
(noting delegates recognition of complex issues arising out of a concerted effort
for food security).
70. See Rome Declaration on World Food, supra note 67, at *3-*4 (noting
need for cooperation at all levels to accomplish goal of food security). Follow-
ing each commitment the Plan of action provides the basis for the action fol-
lowed by the objectives of each action listed. See id. at *6. The plan envisions
each nation developing a strategy based on its abilities to achieve national,
regional and international goals to food security. See id. The plan of action
requires a commitment to the elimination of poverty and to ensure adequate
food supplies on an equal basis to all. See id. Peace is a fundamental condition
to food security and each country must seek its existence. See id. Increased
production of food along with decreasing instability of food supplies must be
achieved. See id.
71. See Rome Declaration on World Food, supra note 67, at *5 (stating
purpose and goal of World Food Summit).
Nation's Charter and international law and summarizes the

United Nation's efforts toward food security.'
III. THE BASIC FOUNDATIONS OF A RIGHT TO FOOD
Human potential and fulfillment derive from an

individual's ability to satisfy the basic need for food.73
Psychological theorists hold that human beings possess a
pyramidal hierarchy of needs.' The first level of this
hierarchical pyramid consists of the most basic needs nec-
essary for human existence, including access to adequate
and sufficient food." Without access to sufficient and
adequate food, the individual lacks the ability to journey
through life and experience the ability to develop a moral
sense, love and be loved, and participate as a productive
member of society.76 "No right has meaning or value
once starvation strikes" therefore, the world communities
pursuit of international human rights will remain futile as
long as the right to food remains unprotected.7
72. See Rome Declaration on World Food, supra note 67, at *5 (noting
reaffirmation of right to food).
73. See Donald E. Buckingham, A Recipe for Change: Towards An Inte-
grated Approach To Food Under International Law, 6 PACE INT'L L. REV.
285, 285 (1994) (noting that any success or achievement must find its roots in
satisfaction of basic needs).
74. See RAYMOND J. CORSINI & DANNY WEDDING, CURRENT PSYCHOTHER-
APIES 156 (3d ed. 1984) (noting self actualization requires satisfaction of basic
human rights). Maslow describes a pyramid of hierarchical needs that requires
the satisfaction of needs at a lower level before one can even begin to address
potential needs at higher levels. See id.; cf. Buckingham, supra note 73, at
285 (noting fulfillment of any human endeavor requires satisfaction of basic
needs).
75. See CORSINI & WEDDING, supra note 74, at 156 (noting self actualiza-
tion requires satisfaction of basic human rights). The first level of the pyramid
consists of access to adequate food, water, and shelter without which human
beings cannot focus on any endeavor but survival. See id.
76. See CORSINI & WEDDING, supra note 74, at 156 (highlighting impor-
tance of self actualization to basic human need).
77. See International Law and the Human Right to Food, supra note 7, at
19 (noting relationship between right to food and other rights).
A. The Current Hunger Situation
Hunger exists today not because the earth lacks sufficient

food to feed all of its inhabitants, but because economic,
political, and sociocultural policies promote poverty and
encourage hunger.78 For example, these economic, social,
and political policies precipitate and exacerbate the problem
of hunger and prevent world leaders from reaching agree-
ments to guarantee adequate food supplies to famine strick-
en countries.79 The mass media often reveals the devas-
tating effects of hunger, but fails to adequately address its
causes and remedies.8' It is a misperception that hunger
78. See Pontifical Council Cor Unum, supra note 6, at 329-331 (noting
world hunger created by policies and decisions of men as opposed to natural
causes). A person's ability to obtain food depends on the individual's ability to
purchase food rather than the actual availability of the food. See id. at 329.
The fact that hunger exists in underdeveloped, as well as developed countries
supports this argument. See id. Even if an individual's country has a sound
economic base, the individual's ability to purchase food determines his or her
ability to eat. See id.
Politics can also effect an individual's ability to have access to food. See
id. Tyrants have utilized the practice of food deprivation as a "political or
military weapon" as a means of controlling people throughout history. See id.
No shortage of food exists or the lack of capacity to produce sufficient food.
See Jonathan Carlson, Symposium: International Law and World Hunger: Hun-
ger Agricultural Trade, Liberalization, and Soft International Law: Addressing
the Legal Dimensions of a Political Problem, 70 IOWA L. REV. 1187, 1188
(1985); see also Buckingham, supra note 73, at 321 (citing cause for world
hunger). Some of the causes of hunger currently include ethnic and religious
strife, Civil war, and inappropriate policies leading to a disruption of food
distribution and food development. See id. The former Yugoslavia, Rwanda,
Somalia, Angola, and Afghanistan represent powerful examples of the effects of
war and ethnic and religious discord as precipitants to hunger. See The United
Nations, Food for All, at *6 (1996) (noting effect of civil war on increasing
number of refugees and decreasing nutrition standards).
The causes of hunger arise not out of natural causes but rather from hu-
man policies and poverty. See Clarence Dias, The Legal Resources Approach,
in FOOD AS A HUMAN RIGHT 178-179 (Asbjorn Eide .tal. eds., 1984) (noting
hunger subsists in current social, economic and political relationships); see also
Carlson, supra, at 1187 (noting poverty as the primary cause of hunger). "The
problem of global hunger consists of a set of separate but, interrelated, food
problems: chronic food shortages in certain regions, undesirable instability of
food supplies leading to excessive price and supply fluctuations, insecurity of
food imports in nations which must rely on such imports, low agricultural
productivity, and chronic malnutrition among the poorer classes in many na-
tions." Id.
79. See Pontifical Council Cor Unum, supra note 6, at 329-331 (noting
political and economic considerations contributing to the existence of world
hunger).
80. Cf Buckingham, supra note 73, at 287 (noting that acute food crises
over last two decades have caught media's attention). The five main food crises
exists in the world because of increasing populations or the

lack of available food.8" Studying the patterns of world-
wide food production, distribution, and consumption demon-
strate that production levels continue to exceed population
growth.82 Thus, economically driven policy decisions of
governments, not natural causes, result in world hunger.83
The existence of the right to food remains quintessential
toward the elimination of hunger because of the gross
inequities in food production and distribution patterns.' 4
For instance, developing or third world countries account
for seventy-five percent of the world's population; they
produce over fifty percent of the world's food and, yet,
consume only forty percent of agriculture produced.85 This
disproportionate relationship between population and con-
sumption has resulted in the third-world countries having a
per capita caloric intake of only 2474 calories per day,
while the developed countries' per capita caloric intake has
increased to 3415.86 Approximately seventy-five percent of
over the last two decades are the 1973-74 crises arising out of the Soviet Un-
ions crop failures, the Ethiopian famines in the mid 1980s, food crises in the
Persian Gulf, the crises in Somalia, and the Republics of the former Yugosla-
via which occurred as a result of armed conflicts. See id. at 287-88.
81. See Pontifical Council Cor Unum, supra note 6, at 330 (noting hunger
is not a consequence of a growing population and sufficient food exists for
all).
82. See Buckingham, supra note 73, at 288 (noting the inequities between
production, distribution, and consumption of food).
83. See Food for All, supra note 65, at *1 (noting disparity between pro-
duction and distribution of agriculture). The production of agricultural has
consistently exceeded population growth but the inappropriate use of this pro-
ductivity has led to world hunger. See id. If one-third of cereals consumed by
livestock were redirected toward human consumption, food availability for each
person would increase from 2,700 calories to 3,000 calories. See id.
84. See Buckingham, supra note 73, at 288.
85. See Buckingham, supra note 73, at 288.
86. See Buckingham, supra note 73, at 288 (noting inequity between devel-
oped and developing countries in terms of caloric intake). There are eight
countries: Bruundi Comoros, Mozambique, Rwanda, Sierra Leone, Somalia,
Bolivia, and Bangladesh, that do not meet the 2,000 caloric intake standard.
See id. Developed countries, however, contain people who lack sufficient food
to meet basic needs as well. See id. Approximately one billion people do not
get enough to eat on a consistent daily basis. See id.
all people make their living by cultivating land.87 Despite

the fact that a majority of the world's population engages
in land cultivation, only a small minority disproportionately
control the vast majority of land through plantations and
farms.88 This small percentage of wealthy individuals en-
joy the protection of national and local governments and
receive a superfluous percentage of governmental loans,
subsidies, investment incentives, and tax privileges. 9 In
turn, this elite minority becomes wealthier and exercises
greater control over the government, which results in
legislation that ensures the inequality between the classes
and the maintenance of poverty. 9°
B. The Concept of a Legal Right and a Human Right
The right to food must take on the status of a legal

right before society is induced into taking all the necessary
actions to combat hunger. 9 Although the term "right"
holds many meanings, it generally constitutes the relation-
ship between two parties, involving a "justified demand by
someone, the beneficiary, or holder of a right, on some-
one, the holder of a duty, that the latter does something
or abstains from doing something."' Within the discipline
of legal theory, rights have their basis in law and require
at least an implicit obligation between the parties to per-
form or respect certain action or inaction.93 Therefore,
87. See Dias, supra note 78, at 179 (noting vast majority of people derive
their subsistence as result of their involvement with cultivation of land). These
people work the land as tenant farmers, share croppers, or laborers. See id.
These workers have little control over the production and the distribution of
food. See id. Additionally, this system keeps them impoverished because by
design it favors the rich and exploits the poor. See id.
88. See Dias, supra note 78, at 179.
§§ 51-64 (analyzing nature of rights and needs).
92. RIGHT TO ADEQUATE FOOD AS A HUMAN RIGHT, supra note 1, at § 54
(defining meaning of term right). The various disciplines that offer different
interpretations and rely on the term "right" include: Ethics, theology, philoso-
phy and philosophy of law, political theories and sociology. See Jose
Zalaquette, The Relationship between Development and Human Rights, in FOOD
AS A HUMAN RIGHT 147 (Asbjorn Eide et al. eds., 1984).
legal theorists define an inoperative right as a moral im-

perative lacking legal obligation and a distinction between
moral rights and legal rights exists because moral rights
carry only social or moral reprobation.' The legal right
provides a recourse protocol and allows the victim of a
violation to receive from an authoritative third party the
benefit of the enforcement of the protocol.' The perfect
legal right exists when a system of enforcement exists to
bring a violation to an end or provides redress to the vic-
tim.' If the world community seeks to protect the abso-
lute and inherent dignity of individuals, the mere assertion
of a moral obligation will remain insufficient unless the
governments of the world enact legislation to guarantee
those rights.'
§ 54 (defining meaning of rights within a legal context). Rights within the le-
gal context must coexist in conjunction with a person's right to privacy and
obligations not to invade that right to privacy. See id. It is necessary to utilize
other norms within the legal system to find elements that make a right opera-
tive. The right to privacy, for example, is an established norm and requires
other norms in that legal system to provide the necessary prohibitions and
sanctions. See id. Simply because a right holds operative status neither ensures
enforcement nor respect of that obligation. See Zalaquette, supra note 92, at
147. Corruption within a law enforcement system, an inefficient law enforce-
ment system, or a population without the means to enforce obligations can re-
sult in nominal operative rights alone. See id. at 148.
94. See Zalaquette, supra note 92, at 148 (describing inoperative character
of rights lacking defined obligation); see also RIGHT TO ADEQUATE FOOD AS A
HUMAN RIGHT, supra note 1, at § 56 (noting the distinction between moral
rights and legal rights). Society does not "organize" to address violations of
moral or social rights. See id. (noting the inoperative effect of moral rights).
§ 56 (noting availability of recourse by third party authority). The provision of
third party adjudication is derived from the fundamental principle of jurispru-
dence that no one can be judged in his own cause. See id. at §§ 56-57. This
general principle has been recognized by civilized nations because "the absence
of a third party to determine rights would leave governments in a position to
unilaterally judge the nature and the extent of their obligations." See id. Such
"unchecked discretion" is inconsistent with the basic requirements of legal
theory. See id. at § 57. In most legal systems, third party determination is
performed by a judicial party. See id. at § 58. Therefore, in order to be con-
sidered a right, it must be justiciable. See id.
§ 59 (describing perfect legal right).
97. See generally Buckingham, supra note 73, at 310 (noting need for legal
obligation to ensure moral obligations); RIGHT TO ADEQUATE FOOD AS A HU-
MAN RIGHT §§ 51-64 (noting need for legal system to ensure protection of
human rights); Zalaquette, supra note 92, at 147 (describing operation of rights
require legal obligation). The benefit of giving a moral obligation legal status
arises because legal obligations have more clarity than moral ones and the
world community has the capacity to enforce a legal obligation. See
Human rights appropriately seek legal representation. 98

Unfortunately, human rights did not originate as legal
rights, but their ideal has always existed.' Human rights
Buckingham, supra note 73, at 310. "Law is critical to the process of trans-
forming international ideals into reality." See Carlson, supra note 78, at 1187.
If a right is legally recognized, a state will honor any claims arising out of
that right. See id. at 1188. The state will respond because, as a member of
the world community, once a right has legal status the state is obliged to act
in a way that complies with the right. See Robert L. Bard, Symposium: Inter-
national Law and World Hunger: Commentary: The Right to Food, 70 IOWA L.
REV. 1279, 1283-84 (1985). Nations conform to legal rights because precedent
requires them to do so. See id. Once a state complies with a legal norm they
have agreed to comply with the laws of the world community and as a mem-
ber of this world community they must comply with rights that raised to the
level of legal rights so that they may remain in good standing with the world
community. See id. International policy goals would fail without legal support
to influence national behavior. See Carlson, supra note 78, at 1188.
International law influences national political behavior. See id. at 1195-
1196. International law can influence national behavior, regardless of its politi-
cal roots, and encourage the development of a foreign policy that complies
with international law. See id. Domestic politicians and policy makers seek
compliance with international law to satisfy and maintain international order.
See id. Further, research has shown that the imposition of a legal duty on a
moral obligation modifies the behavior of strangers to assist strangers in need
where without the legal duty the stranger would not act. See Shelton, supra
note 16, at 1312.
Some international law experts argue that international law is essentially
deficient. See Bard, supra, at 1280. The nature of this deficiency arises out of
a lack of a centralized government or political authority to enforce legal rights
or rules. See id. The enforceability argument, however, lacks merit because a
majority of domestic law exists without enforcement. See JACKSON, supra note
20, at 35. As an example, a large part of domestic law derives out of private
arrangements such as contracts and often these are unenforceable. The United
States could chose not to honor a tort claim against it held by a private citizen
but the mere fact that a law cannot be enforced does not extinguish the fact
that the law was violated or that the law exists. See id.; but see James C. N.
Paul, Symposium: 1986 World Food Day and Law Conference: The Legal Faces
of the Hunger Problem": VII. The Right to Food: The Food Deficit State:
Panel 1 : The Relationship of Political Human Rights to the Hunger Problem,
30 How. L.J. 413, 419 (1987) (arguing that court is only place a right can be
asserted).
98. See John Humphrey, No Distant Millennium: The International Law of
Human Rights, 20-22 (1989) (noting meaning of human rights). Most Human
rights are individual rights but there are some collective human rights. In the
case of collective rights "the individual enjoys such rights in his capacity as a
member of a collectivity." See id. at 22. The ICESCR and the ICCPR ex-
pound the collective right of all peoples to self determination. See id. Human
rights exist for all people because of the very fact that a person "is a person,
a whole, a master of itself and of its acts." See Shon, supra note 5, at 17.
The Human person has the right to be respected by virtue of the very fact that
he is human. See id. Modern times have created a society in demand of rights
for everything and anything. See id.; but see John Leo, A Man's Got a Right
to Rights, U.S. NEWS & WORLD REPORT, Aug. 4, 1997, at 15 (describing
overabundance of frivolous rights).
achieve legal status when recognized by representative

authoritative bodies, such as individual governments or
collective associations.' °
There are three types of duties that correlate with every
basic human right: the obligation to respect human rights,
the obligation to protect human rights, and the obligation
to fulfill human rights.' The "obligation to respect" hu-
man rights obligates the state, including all its organiza-
tions and agents, to renounce any action that violates the
"integrity" of the individual or infringes upon an
individual's freedom." ° "The obligation to protect" obli-
gates the state and its agents to take necessary measures to
prevent other third parties from "violating the integrity,
freedom of action, or other human rights of the individual
- including the prevention of infringement of the enjoyment
of his material resources".13 The "obligation to fulfill"
obligates the state to take necessary measures in ensuring
each individual within the state has the opportunity to
satisfy those needs which personal efforts cannot
secure."" The state's role as protector and provider must
promote human rights while placing appropriate limitations
on its scope of action so as not to infringe on other
rights. 5
The state must remain an active participant in its role as
protector and provider of all rights. ° The United Na-
§ 61 (1989) (noting history of human rights as merely ideals and not rights).
The expression "human rights" has only become popular since World War II
and the founding of the United Nations in 1945. See STEINER & ALSTON,
supra note 19, at 167. It replaced the phrase "natural rights" and the later
phrase "rights of man." See id. The theoretical nature of human rights has
been the subject of debate since ancient times. See Shon, supra note 5, at 17.
§ 61 (noting the evolution of human rights from ideals to moral rights to legal
rights). In many domestic legal systems human rights were incorporated a over
one century ago into positive national law. See id.
§§ 112-114 (discussing three duties and relationship to human rights).
102. See id. at § 67.
103. See id.at § 68.
104. See id.at § 69.
105. See id.at §§ 70-71 (noting states responsibility to promote human rights
without interfering with other rights); see also infra notes 106 and 107 and
accompanying text (discussing need for state to strike balance between promot-
ing rights and interfering with rights).
106. See RIGHT TO ADEQUATE FOOD AS HUMAN RIGHT, supra note 1, at
§ 70. In addition to the three levels of responsibility there is a distinction
tions advocates a natural law approach to the concept of

human rights and proclaims that all human beings have an
inalienable right to basic human rights."0 7 Notably, the
right to food exists as one of these inalienable rights. 18
The extent to which the Charter and the International Bill
of Human Rights exist as legally binding documents how-
ever, depends on the legislative competence of the United
Nations General Assembly." In general, virtually every
resolution passed by the General Assembly operates as a
non-binding recommendation. " ' The majority of Untied
Nations resolutions and declarations are no more than
persuasive evidence or interpretations of international law
which can influence states and organizations in legitimizing
claims and justifications in international relations."' A
declaration can be elevated to an authoritative interpretation
of the Charter." 2 However, only after a declaration be-
comes customary international law, does it become legally
binding on the international community. "3
IV. CUSTOMARY INTERNATIONAL LAW
Custom serves as the original and oldest source of inter-

national law. 1 4 Customary international law "remains in-
dispensable to an adequate understanding of human rights
between obligations of conduct and result. See id. at § 71. An obligation of

conduct points to an active behavior which the state should follow or abstain
from. See id. An obligation of result is less concerned with the choice of the
line of action taken, but more concerned with the results which the state
should achieve or avoid, such as, the states effort to eliminate hunger. See id.
The states conduct in respecting the freedom of the individual does not require
the state to actively fulfill the needs of individuals, by being a provider of
material goods rather, a states passiveness and non-interference can allow indi-
viduals to control their own resources. See id. at § 72.
107. See Shon, supra note 5, at 17-18 (noting United Nations concept of
human rights); see also Buckingham, supra note 73, at 310.
108. See Shelton, supra note 16, at 1312-13 (noting provisions for right to
food throughout positive international law).
109. See Joy A. Weber, Famine Aid to Africa: An International Legal Ob-
ligation, 15 BROOK. J. INT'L L. 369, 381 (1989) (noting legal character of
General Assembly).
110. See id. at 382.
111. See id.
112. See id.
113. See id.
114. See STEINER & ALSTON, supra note 19, at 27-28 (defining custom).
law." ' ' Custom has developed from a variety of sourc-

es. 116 A general practice accepted as law is international
custom with its inclusive elements: the duration of the
practice, the uniformity or consistency of the practice, the
generality of the practice, and opinio juris et necessitatis
(opinio juris). 7 The International Court of Justice (IJC)
has determined that: "The party [that] relies on a cus-
tom . . . must prove that this custom is established in
such a manner that it has become binding on the other
party . . . that the rule invoked . . . is in accordance
with a constant and uniform usage practiced by the [s]tates
in question . . ,.'
". Despite the development of cus-
tomary international law, its influence extends only to the
115. See id. at 27-28 (noting influence of custom on international law).

116. See id. at 40 (noting sources that enable evolution of custom).
The material sources include the following: diplomatic
correspondence, policy statements, press releases, the
opinions of official legal advisers, official manuals on
legal questions, e.g. manuals of military law, executive
decisions and practices, orders to naval forces etc., com-
ments by governments on drafts produced by the Interna-
tional Law Commission, state legislation, international and
national judicial decisions, recitals in treaties and other in-
ternational instruments, a pattern of treaties in the same
form, the practice of international organs, and resolutions
relating to legal questions in the United Nations General
Assembly.
Id. The worth of each of these sources varies according to the context and
circumstances. See id.
117. See STEINER & ALSTON, supra note 19, at 40-41 (listing elements of
custom); Weber, supra note 109 (noting traditional elements of customary law).
The element of duration requires consistency and generality of practice not any
specific length of time. See'STEINER & ALSTON, supra. The element of unifor-
mity only requires "substantial" uniformity not "complete" uniformity." Id.
Generality of the practice does not require "universality;" rather it requires
evidence of substantial practice. Id. Finally, opinio juris requires a "recognition
by states of a certain practice as obligatory." Id. The elements cited tradition-
ally include "the practice of the individual states as well as the concept of
opinio juris sive necesitates." Weber, supra.
The opinio juris is a general practice accepted as law and it is therefore
obligatory. See STEINER & ALSTON, supra. Opinio juris is a "stringent theory"
that does not exist if states remain free to depart from the practice in question
at any time. Weber, supra. States are obligated by opinio juris and act out of
this obligation. See id. States are motivated by this obligation rather than being
motivated out of a sense of courtesy, or even morality. See STEINER &
ALSTON, supra. Opino juris is accepted on the basis of evidence of general
practice, or a consensus in the literature or by previous determinations by
international tribunals. See id.
118. See Weber, supra note 109, at 383-84 (quoting UCs holding in North
Sea Continental Shelf Cases, 1969 I.C.J. at 4).
limits of the will of the assenting states, allowing a state

to remain free from any customary law to which it did not
consent. 9
The bulk of international law depends on the will of the
states.'20 States may, therefore, alter or even "dispense
all together" with the majority of international law.' 21 Jus
cogens, peremptory norms of general international law,
prohibit derogation. 2 2 If a right or obligation assumes the
character of a norm of general international law, a state
can neither dissent from nor avoid the obligations of the
norm, even if the state never consented to such a
23
norm.
A. The Right To Food as Established by Customary

International Law
Multiple international and regional documents address and

consider the right to food as superior to all other rights,
because without access to food all other rights become
nonexistent.' 24 The United Nations Charter, the UDHR,
119. See generally STEINER & ALSTON, supra note 117 (describing interna-
tional law's reliance on will of individual states).
120. See id. at 45 (discussing international law's reliance on will of individ-
ual states).
121. See id. at 133.
122. See id. at 133-34 (introducing concept of jus cogens).
123. See id. The Charter constitutes jus cogens and for that reason it defines
the obligations and rights of all nations throughout the world. See id.; Shon,
supra note 5, at 14-15 (describing Charter as prevailing over all other docu-
ments and treaties).
19 (noting priority of right to food over all other rights). "[N]o right has
meaning or value once starvation strikes." Id. The right to food has been en-
dorsed and violated more than any other right and it is defined as the most
basic of all rights. See supra note 8 and accompanying text.
Whether one speaks of human rights or basic human
needs, the right to food is the most basic of all. Unless
that right is first fulfilled, the protection of other human
rights becomes a mockery for those who must spend all
their energy merely to maintain life itself . . . . Unless
all governments begin now to act upon their rhetorical
commitments to ending hunger, the principle that human
life is sacred, which forms the very underpinnings of
human society will gradually but relentlessly erode.
Spitz, supra note 17, at 162 (quoting presidential Commission on World Hun-
ger); see also Shelton, supra note 16, at 1312-13 (noting several international
instruments recognize the right to food).
the ICCPR, the ICESCR, and the World Food Summit

Declaration establish and confirm the legal right to
food." z The Charter emphasizes the economic, social, and
physical well being of all peoples and implicitly calls for
the United Nations to address wrongs suffered by individu-
als in the international community.' 26 The Charter con-
tains the "groundwork" for all subsequent international
right to food rules.'27 The language utilized by the Char-
ter: "higher standards of living" implies that the interna-
tional community must eliminate hunger to permit an indi-
vidual to grow beyond the achievement of mere surviv-
al. "' The language, "solutions to international health
problems" and "universal respect for human rights," im-
plicitly demands a solution to starvation and the grant of
rights basic to securing the necessities of life to all peo-
29
ple. 1
The UDHR remains a continuation and authoritative
interpretation of the Charter. 3 ° The UDHR calls on all
nations, organizations, and individuals to implement the
right to food for all.'' Article twenty-five of the UDHR
125. See supra notes 65-66 and accompanying text (noting recognition of
right to food).
126. See Weber, supra note 109, at 378.
With a view to the creation of conditions of stability and
well-being which are necessary for peaceful and friendly
relations among nations based on respect for the principle
of equal rights and self determination of peoples, the
United Nations shall promote:
(a) higher standards of living, full employment, and
conditions of economic and social progress and develop-
ment.
(b) solutions of international economic, social,
health, and related problems; and international cultural
and education co-operation; and
(c ) universal respect for, and observance of, human
rights and fundamental freedoms for all without distinction
as to race, sex, language, or religion.
Id. (quoting U.N Charter, article 55).
127. Buckingham, supra note 73, at 289. The Charter, however, does not
explicitly mention food. See id. at 289-90.
128. See id. at 290.
129. See id.
130. See Shon, supra note 5, at 17.
131. See Shelton, supra note 16, at 1312 (noting common standard applying
to all peoples in providing and receiving right to food).
1. Everyone has the right to a standard of living adequate
for the health and well-being of himself and his family,
including food, clothing, housing and medical care and
explicitly provides for a right to food: "Everyone has the

right to a standard of living adequate for the health and
well being of himself and his family, including
food . . .1. Additional articles of "the UDHR implic-
itly grant a right to food by explicitly recognizing rights
such as a right to life, economic rights, and the entitle-
ment of all peoples to international order.133 The UDHR
explicitly and implicitly proclaims the right to food as a
common standard belonging to individuals and nations
alike. "
The ICCPR and the ICESCR respectively provide for the
right to food.135 Article one and article six of the ICCPR
recognize a right to self-determination, and article six, the
right to life. 36 The ICESCR explicitly grants the right to
necessary social services, and the right to security in the

event of unemployment, sickness, disability, widowhood,
old age or other lack of livelihood in circumstances be-
yond his control.
2. Motherhood and childhood are entitled to special care
and assistance. All children, whether born in or out of
wedlock, shall enjoy the same social protection.
Asbjorn Eide, Article 25, in THE UNIVERSAL DECLARATION OF HUMAN
RIGHTS: A COMMENTARY, 385 (Asbjorn Eide, et. al. eds., Scandinavian Uni-
versity Press 1992) [hereinafter Article 251 (quoting Article 25 of the UDHR).
(noting right to food in article 25). The four elements of article 25 are the
provision for a standard of living "adequate for the health and will-being" of
all people, the right to security, the entitlement of special care and assistance
to mothers and children, and equal protection for all children whether born
inside or outside of wedlock. Article 25, supra note 131, at 389-90.
(noting articles within UDHR implicitly granting a right to food). Article two
of the UDHR states that "everyone is entitled to all the rights and freedoms
set forth in this Declaration, without distinction of any kind . . . ." Id. Article
three of the UDHR provides that "everyone has the right to life . . . ." Id.
Article twenty-eight provides that "everyone is entitled to social and internation-
al order in which the rights and freedoms set forth in this Declaration can be
fully realized;" and article twenty-nine provides that "everyone has duties to
the community . . . ." Id.
134. Shelton, supra, note 16, at 1313.
22-24 (noting covenants' explicit and implicit provisions for right to food).
136. See id. at 22-25 (noting implication of right to food within the ICCPR).
Article one is the only provision common to both covenants and it states:
1. All peoples have the right to self-determination. By
virtue of that right they freely determine their political
status and freely purpose their economic, social and cul-
tural development. 2. All peoples may, for their own
ends, freely dispose of their natural wealth and resources
without prejudice to any obligations arising out of interna-
food and reiterates those guarantees enumerated in the

UDHR. 31' 7 Article 2(1) of the ICESCR obliges a party to
comply with all terms of the covenant to the extent that
the state has the resources available to comply.'38 Article
eleven of the ICESCR recognizes the right to food and
requires an international cooperation to ensure the equitable
distribution of world food supplies.' 39 ICESCR identifies
the only fundamental right in the International Bill of
Human Rights as "right to be free from hunger."" 4
tional economic co-operation, based upon the principle of

mutual benefit and international law. In no case may a
people be deprived of its own means of subsistence.
Id. at 23 (quoting article one of the ICCPR). The enjoyment of the right to
self-determination by peoples is basic to their enjoyment of all other human
rights. See id. at 23. The right to food underscores a people's ability to freely
pursue their economic, social, and cultural development. See id. Therefore, a
state committed to ensuring and maintaining the right to self-determination must
ensure the right to food remains "the cornerstone of genuine self determina-
tion." Id. at 23. Additionally, article one provides the outright prohibition
against depriving peoples of their own means of subsistence. See id. This lan-
guage clearly implies a right to food. See International Law and the Human
Right to Food, supra note 7, at 23. Article six provides "every human being
has the inherent right to life . . . no one shall be arbitrarily deprived of his
life." Id. at 24. Article six describes the right to food as both philosophically
and physiologically necessary to the right to life. See id. Arguments, however,
persist against applying "a broad conceptualization" to the legal interpretation
of the right to life in favor of applying a narrower interpretation that limits the
right to life as a civil right to be safeguarded against outright killing. See id.
137. Weber, supra note 109, at 379-80. The ICESCR contains a longer and
much more comprehensive catalog of economic, social and cultural rights than
the UDHR. See id.
138. The Need for an Entirely New Strategy, supra note 59, at 369-70.
Each state party to the present Covenant undertakes to
take steps, individually and through international assistance
and co-operation, especially economic and technical, to
the maximum of its available resources, with a view to
achieving progressively the full realization of the rights
recognized in the present covenant by all appropriate
means, including particularly the adoption of legislative
measures.
See id. A country's economy is the determining factor in evaluating a state's
ability to meet its obligations. NEWMAN & WEISSBRODT, supra note 25, at
370. The state is entitled to a wide discretion in determining the amount of
resources to be set aside for the promotion and realization of rights. See id.
Each state has the obligation to take steps to the "maximum of their available
resources." to fulfill its obligations under the ICESCR. RIGHT TO ADEQUATE
FOOD AS A HUMAN RIGHT, supra note 1, at § 102.
139. See Shelton, supra note 16, at 1312.
140. See International Law & the Human Right to Food, supra note 7, at
32.
V. ANALYSIS
Legal theorists have traditionally defined a right as re-

quiring either action or the abstention from an action on
the part of a duty holder toward the one who holds the
right. 4' Human rights enable the existence of dignity and
apply to individuals because of their humanness. 142 Histor-
ically, human rights have been held as social and moral
imperatives without the benefit of legal recognition. 143
The right to food has, however, received legal status in
the twentieth century.'" Despite having achieved the sta-
tus of a legal right, the right to food lacks concrete rem-
edies against violators and is, therefore, violated more than
any other right. 45
The United Nations sought to define the fundamental
principles of all nations and the resposibilities of individual
governments to their own citizens and all peoples of the
world.'" Among these fundamental principles, the United
Nations addressed the issues surrounding human rights.'47
Later through various and sundry organizations, covenants
and declarations, this world body recognized, defined, and
imposed obligations regarding these rights. 4 ' The right to
food became a fundamental part of these lists of rights and
obligations. "'
This fundamental right to food though acknowledged by
philosophical, social and moral principles did not enjoy
legal status until the twentieth century. 5 ° World history,
filled with tyranny and abuse, has paved the way for the
141. See supra note 92 and accompanying text (defining term right).
142. See supra note 98 and accompanying text (detailing entitlement to hu-
man rights for all people simply because of their humanness).
143. See supra Part H.A (detailing historical background of modern interna-
tional human rights).
144. See supra notes 53-56 and accompanying text (describing assent of hu-
man rights to legal status).
145. See supra note 8 and accompanying text.
146. See supra notes 29-30, 40 and accompanying text (noting purpose of
United Nations Charter).
147. See supra Part II.B (describing United Nations commitment to promulga-
tion of human rights).
148. See supra notes 63-71 (noting promulgation of additional documents
supporting United Nations Charter and Bill of Rights).
149. See supra notes 64-71 (noting proliferation of right to food documents).
150. See supra notes 16-19 (detailing history of recognition of right to food);
see supra notes 54-57 (describing assent of right to food to legal status).
legal recognition of this most fundamental of all human

rights. 5' As a fundamental right it precedes other rights
the world holds inalienable. 152 The satisfaction of other
rights will remain futile as long as a person lacks access
to that which sustains all other rights namely, food. 53
Hunger exists as a consequence of social, economic and
political policies, not as the result of the incapability of
food production.'54 Since human determination causes the
hunger that impacts individuals, nations, and in turn the
global community, human determination needs to provide
legal remedies that provide legally binding remedies both
nationally and internationally.155 Without legal remedy the
injustice and abuse will continue to multiply and destroy
all other rights that humanity attempts to safeguard. 56
In addressing the issue of the legal right to food the
global community does not work in a vacuum; rather it
has already established legal precedent to assist in creating
the legal underpinnings guaranteeing access to nutritional
sustenance.' 57 The precedent finds its roots in the United
Nations Charter which implicitly recognizes the right to
food. 58
"' Further, the UDHR, an authoritative interpretation
of the Charter explicitly provides for the right to food.'5 9
The ICESCR and vehicles such as the World Food Summit
have continually reinforced the right to food."6 This on-
going and evolving process represents customary interna-
tional law. 6 ' The international community should avoid
an overdeveloped sense of rights while enforcing those
rights that have achieved the status of customary interna-
151. See supra Part IV.A (noting need for a legal right to food).
152. See supra Part IV.A (noting supremacy of right to food).
153. See notes 73-77, 124 and accompanying text (recognizing futility of oth-
er rights without right to food).
154. See supra notes 78-90 (establishing root causes of hunger).
155. See supra Part HI.B (stressing need for legal status of right to food).
156. See supra note 124 and accompanying text (describing ICESR at World
Food Summits attempts to legitimize right to food).
157. See generally supra Part II.B (detailing established precedent of legal
right to food).
158. See supra notes 127-129 and accompanying text.
160. See supra notes 137-140 and accompanying text (noting ICESCR ex-
plicitly provides for right to food); supra notes 66-72 and accompanying text
(demonstrating World Food Summit's reinforcement of right to food).
161. See supra Part VI (describing customary international law).
tional law according to the principles of jus cogens 62

Legal justice demands that individual nations and govern-
ments uphold their duty to either abstain from interfer-
encing with access to food or to assume the necessary
actions to assure adequate and sufficient nourishment for
all citizens. " International Law requires all nations, re-
gardless of their ideology, to grant and protect economic
and social rights, as well as political and civil rights be-
cause according to international law both sets of rights
must coexist interdependently. " Mistakenly, some nations
of the world community, i.e., the United States, refuse to
recognize the legal status of Second Generational rights
when it comes to food. 1" Consequently, human beings
continue to starve or remain malnourished in a world
clearly capable of producing sufficient amounts of food for
all of its citizens.166
The larger more powerful nations consume disproportion-
ate amounts of nutritional resources while lesser nations
struggle with inadequate food supplies. 67 The multidimen-
sional impact of this stance creates additional issues such
as famine, war, and political upheaval." 6 Food essentially
becomes a weapon as opposed to a right. 69
The legal right to food does exists according to the
principle of jus cogens, therefore, all nations, states, gov-
ernments and sovereignties regardless of whether they en-
dorse the United Nations Charter, declarations, or cove-
nants, remain obligated to honor the right to food. 170 It
162. See supra notes 97 and accompanying text (observing an overabundance

of claims for rights); see also supra notes 122-123 and accompanying text
(describing principles of jus cogens).
163. See supra note 105 and accompanying text (noting state has obligation
to both protect and provide right to food).
164. See supra notes 38-39 and accompanying text (noting interdependence of
First and Second Generation Rights).
165. See supra note 59 (noting United States failure to sign ICESCR).
166. See supra Part III.A (noting world agricultural production produces suf-
ficient food for all peoples).
169. See supra note 78 and accompanying text (describing how governments
use food to manipulate and control their own people or other nations).
170. See supra notes 122-123 (defining principle of jus cogens); supra Part
IV.A (recognizing fact that United Nations Charter and subsequent international
documents have either explicitly or implicitly accepted right to food as a norm
of international law).
matters not whether a nation accepts the philosophical,

social, or moral imperatives of any one particular religious
or cultural group, the right to food exists according to the
principle of jus cogens. 17' The right to food has become
a part of the principle of jus cogens based upon the multi-
ple international documents that explicitly and implicitly
grant the right to food and accepting this right as a norm
of international law."
The world community has accepted the right to food as
a norm of international law as evidenced by the fact that
the right to food exists as the only right explicitly labeled
and defined in the International Bill of Human Rights as
fundamental." The world community must therefore do
more than hold summits and conferences that merely ex-
pose the magnitude of hunger and present goals for reduc-
ing the problem of hunger. 74 The world community must
instead utilize its authority as established by the principles
of jus cogens to enforce the right to food against violators
and hold these violators liable under customary international
law as it does against nations who violate political and
civil rights. 75 If the United Nations remains impotent in
its address of world hunger, hunger will steadily grow
more pervasive and destructive and the entire world will
suffer.- 6
VI. CONCLUSION
All nations must embrace and enforce the fundamental
human right to food as established by customary interna-
tional law according to the principles of jus cogens.'"
The world governmental bodies must respect, protect, and
fulfill the legal obligations attached to securing sufficient
nutritional resources for all citizens.'78 Without legal en-

172. See supra Part IV.A.
173. See supra note 140 and accompanying text.
174. See supra notes 65-71 (noting declarations and documents calling for the
right to food and establishing goals toward reduction of hunger).
175. See supra notes 61-62 and accompanying text (calling for equal en-
forcement of economic and social rights and political and civil rights).
176. See supra Part III.A (describing insidious nature of hunger); supra note
5 and accompanying text (noting boundless effects of hunger).
177. See supra Part IV.A (noting the principles of jus cogens).
178. See supra Part IV.A (noting principles of jus cogens obligate each na-
forcement of this right, hunger and malnutrition will con-

tinue to plague individuals, states, nations, and the entire
world community, wreaking havoc on global efforts to
secure justice and peace for all peoples. 79
Anthony Paul Kearns, III
tion state to honor right to food).

179. See supra notes 93-100 and accompanying text (recognizing need to 'le-
galize right to food and enforce it).

Anthony Paul I I I Kearns Ther I

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For the first time in history, international agricultural

the global community exists within an ecosystem and oper-

5. See JACOBO SCHATAN & JOAN Gussow, FOOD AS A HUMAN RIGHT

V analyzes why the right to food exists today as part of

II. HISTORY OF THE RIGHT TO FOOD

Historians have recorded the existence of hunger and a

12. See infra Part IV.

cyclicals, and canons, calls for the fundamental right to

A. Historical Background of Modem

Karel Vasak, a French jurist, categorizes human rights

national governments commonly held that individuals did

tional human rights).

Nuremberg Trials changed customary international law doc-

violation of both sets of rights.37 Throughout the Cold

B. History of the Emanation of Human Rights Through

which established the United Nations mission as securing

charter have a flexible enough quality to remain a lasting expression of the

The drafters of the Charter allowed the Charter to enter

existed at the inception of the UDHR, governments have

this end, the Commission divided the UDHR rights into

ICCPR mirror each other to the extent that they reflect an

The world Community's most recent attempt to realize

Summit.' The World Food Summit convened in Rome to

sentatives participated in the Summit on behalf of the remaining countries. See

Summit explained that "demography" alone does not cause

Food Conference and Prospects; Success Stories in Food Security; Socio-politi-

Summit's Plan of Action calls for objectives and actions

eradication of poverty and for durable peace, based on

Nation's Charter and international law and summarizes the

III. THE BASIC FOUNDATIONS OF A RIGHT TO FOOD

Human potential and fulfillment derive from an

A. The Current Hunger Situation

Hunger exists today not because the earth lacks sufficient

exists in the world because of increasing populations or the

all people make their living by cultivating land.87 Despite

B. The Concept of a Legal Right and a Human Right

The right to food must take on the status of a legal

legal theorists define an inoperative right as a moral im-

Human rights appropriately seek legal representation. 98

achieve legal status when recognized by representative

tions advocates a natural law approach to the concept of

IV. CUSTOMARY INTERNATIONAL LAW

Custom serves as the original and oldest source of inter-

between obligations of conduct and result. See id. at § 71. An obligation of

law." ' ' Custom has developed from a variety of sourc-

115. See id. at 27-28 (noting influence of custom on international law).

limits of the will of the assenting states, allowing a state

A. The Right To Food as Established by Customary

Multiple international and regional documents address and

the ICCPR, the ICESCR, and the World Food Summit

explicitly provides for a right to food: "Everyone has the

necessary social services, and the right to security in the

food and reiterates those guarantees enumerated in the

tional economic co-operation, based upon the principle of

Legal theorists have traditionally defined a right as re-

legal recognition of this most fundamental of all human