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Journal of HumanDevelopment: A Multi-Disciplinary Journalfor People-CenteredDevelopmentPublication details, including instructions forauthors and subscription information:http://www.tandfonline.com/loi/cjhd19
Human Rights to Food,Health, and EducationSiddiqur Rahman Osmani aa University of Ulster , UKPublished online: 03 Aug 2010.
To cite this article: Siddiqur Rahman Osmani (2000) Human Rights to Food,Health, and Education, Journal of Human Development: A Multi-DisciplinaryJournal for People-Centered Development, 1:2, 273-298, DOI: 10.1080/713678042
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Journal of Human Development, Vol. 1, No. 2, 2000
Human Rights to Food, Health, and Education
SIDDIQUR RAHMAN OSMANIS. R. Osmani is Professor of Development Economics at the University ofUlster, UK
This paper deals with a set of issues related to the human rights to food,health, and education. The �rst section attempts to elucidate the philosoph-ical underpinning of these rights, using the conceptual framework ofcapabilities developed by Amartya Sen. In this context, the notion of‘capability rights as goal rights’ is elaborated and contrasted with a popularversion of libertarian rights. The second section explores the implications ofscarcity of resources for viewing economic rights as capability rights. Thethird section investigates the causal interconnections between differentcomponents of economic rights as well as between economic and non-economic rights. The following section provides a brief historical account ofthe international community’s efforts to elaborate and institutionalize thenotions of rights to food, health, and education in the past half-century. Itis shown how closely the emerging consensus on the meaning of theserights resembles the notion of capability rights. The �nal section deals witha fundamental problem that remains in operationalizing the rights-basedapproach to human development and suggests a way forward.
Rights and capabilities
Moral theories of rights have traditionally been based on a proceduralapproach. In this approach, certain rules and procedures are identi�ed thatare deemed to have fundamental moral importance. The moral force ofeverything else, including rights, follows from adherence to these proce-dures. The precise nature of the procedures to be adhered to depends onthe speci�c context; in the case of rights, it depends on the kind of rightsbeing discussed. In the context of economic rights, for example, thisapproach would attach fundamental moral importance to a set of rules orprocedures for acquiring, exchanging and disposing of goods and services.
In a widely acclaimed work, Robert Nozick (1973, 1974) has spelt outjust such a set of procedures for de�ning property rights. Here, propertydoes not mean simply assets such as land and buildings, but any economicgood including food, healthcare, and so on. Nozick uses the term ‘entitle-ment’ to denote the notion of right to own economic goods, and argues thatpeople are entitled to the holdings that have been acquired by following‘just procedures’. The ‘just procedures’ are those that conform to what heregards as fundamental principles of justice in acquisition and transfer.
ISSN 1464-9888 print/ISSN1469-9516 online/00/020273-26 Ó 2000 United Nations Development ProgrammeDOI: 10.1080/1464988002000876 7
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According to these principles, a person is entitled, in the �rst instance, towhat he himself produces with his own labour. Next, he is entitled to whatis produced by the resources owned by him and what he can acquire byfree exchange of what he legitimately owns. Finally, he is entitled to whatis legitimately passed on to him through inheritance or gift, provided theperson making the transfer was entitled to the holdings that have beentransferred.
Two features of this view of rights are worth noting: one relates to thejusti�cation of these rights, and the other to the duties and obligations theyentail for others. The justi�cation of Nozickian rights obviously derives fromthe justi�cation of the underlying procedures for acquisition. But wheredoes the justi�cation of these procedures come from? According to Nozick,it comes from the moral intuition that these procedures are in some senseintrinsically right — it seems intuitively obvious to him that a just societymust be based on these procedures. No reference is made to the conse-quences of having those rights in order to justify them. The consequencesmay be good or bad in terms of some other moral principles, but that hasnothing to do with why the rights are to be accepted as such. Thisdeontological or non-consequentialist nature of justi�cation is an essentialfeature of Nozickian rights.
Every right entails some duty or obligation for others. In the case ofNozickian rights, the duty or obligation takes the form of a constraint. Myright to property entails that nobody may prevent me from acquiring aproperty so long as I follow the just procedures, or may take away from meany property I have so acquired. My right thus imposes a constraint on otherpeople’s behaviour. In this, Nozickian property rights fall neatly in thegeneral category of libertarian rights, which also include the civil andpolitical rights enshrined in the Universal Declaration of Human Rights.What is important to note here is that, in common with all libertarian rights,the obligation entailed by Nozickian rights is a purely negative one — othersare obliged not to hinder my legitimate acquisition. There is no positiveobligation here — others are not obliged to help me in my endeavour toacquire things legitimately.
Combining these two features, the de�ning characteristic of Nozickianright can be described as constraint-based deontology. These rights entail aconstraint, and nothing more than a constraint, by way of obligation ofothers; the justi�cation of the rights as well as of the constraint entailed bythem is purely deontological, not based on any evaluation of the outcomesthat will follow from either respecting these rights or from violating them.
What does this conception of right imply in the speci�c context ofthe rights to have food, health and education? We can think of theimplication in three parts: in terms of these rights’ content, justi�cation,and entailed obligation. In terms of content, the implication is that peoplehave a right to engage in production and exchange activities in order toacquire food, health, and education for themselves and their families, solong as they follow the stipulated just procedures for acquisition andtransfer.
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However, the justi�cation of these rights does not lie in any evaluationof the outcomes. For instance, the reason why people should have the rightto food is not that by exercising this right they will achieve good outcomessuch as freedom from hunger and the ability to live a healthy active life, etc.These outcomes may very well happen, but that is not the reason whypeople should have the right. They should have the right because in tryingto acquire food they have followed a just procedure.
Finally, my right to have food implies that others have an obligation notto obstruct my attempt to acquire food through legitimate means: forexample, they may not forcefully take way the cultivated land that Irightfully own, they may not force me to hand over a part of my producewithout a quid pro quo to which I have agreed, and so on. However, shouldit so happen that the food I have acquired through legitimate means is notenough to keep me or my family from starving, then others have noobligation to feed me or even to help me to produce more food. They may,of course, feel a moral duty to help me, but the important point is that Icannot make a claim on their help — in this sense, they are not obliged tohelp me.
This way of looking at the right to food clearly captures some importantaspects of what people have in mind when they assert this right. Forinstance, we do wish that our right to food should entail that we should beallowed to acquire food without let or hindrance so long as we stick tolegitimate means. But closer introspection shows that this particular concep-tion of right is seriously limiting in more ways than one. These limitationsarise from the exclusively constraint-focused nature of the entailed obli-gation.
The focus on constraint makes the Nozickian property right a kind ofnegative right, corresponding to Isaiah Berlin’s (1969) famous distinctionbetween negative and positive freedoms. Just as there are negative rightslinked with negative freedoms, so there can be, at least in principle, positiverights linked with positive freedoms. But the constraint-based approachdoes not permit us to postulate a system of positive rights. The distinctionin the present context can be stated as follows.
My negative right to food, if respected, will allow me to enjoy thenegative freedom of going about the task of acquiring my food without letor hindrance. The focus here is not on how much food I can acquire andwhether or not that food is in some sense adequate for me or my family —the focus is on whether or not I am unlawfully hindered in my pursuit offood. If I have not been so hindered, then I have enjoyed my negativefreedom no matter how meagre the amount of food I may have acquired.
By contrast, we may postulate a positive right to food by linking it withthe positive freedom of, say, being free from hunger. Such a right to food,if respected and promoted in full, will ensure that a person can actuallyacquire enough food to be free from hunger. But, if it turns out that I amincapable of being free from hunger by making full and legitimate use of myresources, and yet if other people’s obligation towards me amounts tonothing more than a constraint that they might not obstruct my legitimate
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pursuit of food, then obviously my right to the positive freedom of hungercannot exist. Thus, only a conception of right that makes active help anessential part of the duty-bearer’s obligation can respect positive freedom.By de�ning obligation exclusively in terms of constraint, the Nozickianconception of right necessarily rules out a rights-based approach towardspositive freedom.
A second limitation of constraint-based deontology has to do withrespect for negative freedom itself. This approach obviously allows rights tobe linked with negative freedom, but by de�ning obligation exclusively interms of constraint, it imposes a severe limitation on how we are supposedto value negative freedoms and what are we to do about them. Theexclusive focus on constraint implies that we are to value negative freedomonly to the extent of not violating them — we cannot value them enoughso as to actively promote or defend them. As Amartya Sen has forcefullyargued, this limitation is hard to defend.
His argument can be adapted in the present context as follows. If I feelthat negative freedom is valuable, and I hear that you are about to be robbedof your crop, and I know that I can prevent that from happening, thenI should certainly be under some obligation to consider that prevention. Iwould fail to value negative freedom if I were to refuse to consider whatI could do in defence of negative freedom (Sen, 1984, pp. 313–314). Thus,by not obliging me to defend other people’s negative freedoms, the exclus-ive focus on constraint, in a way, diminishes the value of negative freedomitself.
It is, therefore, clear that, if we value freedoms, then a morally moreadequate system of rights must be founded on something other thanconstraint-based deontology. Such a system of rights will have to accord dueweight to positive freedoms as well as to negative freedoms and, moreover,the nature of rights must be such that negative freedoms are valued not justminimally (demanding nothing more than non-violation), but also morerobustly (demanding active protection).
Amartya Sen (1982a, 1985) has proposed a system, called the goalrights system, that can meet these requirements fully. In this system,ful�lment of rights is seen as a part of the goals that a society is supposedto pursue while designing its social and political structure. Here, rights mayhave instrumental worth, in the sense that their ful�lment may helppromote the goals a society happens to value, which may include both otherrights as well as non-right goals. They may also have intrinsic worth, i.e.certain rights may be justi�ed on deontologic grounds, without reference tothe consequences that would follow from respecting them. But, irrespectiveof whether their worth is instrumental or intrinsic, since their ful�lment ispart of societal goal, taking actions that can promote their ful�lmentbecomes an obligation of those who are in a position to take those actions.This approach thus liberates the system of rights from the narrow con�nesof constraint-based obligation, by demanding active steps towards theful�lment of rights.
The general formulation of the goal rights system leaves open the
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question of what substantive rights are to be included as part of societalgoals. Sen himself has argued forcefully for considering ‘capability rights’ asthe substantive content of goal rights (Sen, 1982a, 1984). In this view,societal goals should include the ful�lment of people’s rights to capabilities.If we adopt this perspective in the present context, then the rights to food,healthcare, education, etc. are to be viewed as proxies for more fundamen-tal rights to the capabilities that derive from access to food, healthcare andeducation; namely, the capabilities of being free from hunger, of beingwell-nourished and being able to avoid morbidity and premature mortality,of being able to participate actively in the society, and so on.
The extent to which people’s rights to food, healthcare, education, etc.are being ful�lled will then be judged by the extent to which thesecapability are being ful�lled. Furthermore, these rights will entail as obli-gation any action that others can take to improve people’s capabilities —this follows directly from viewing capability rights as goal rights whoseful�lment is supposed to be a part of societal goals.
This characterization of obligation helps us to see clearly how the‘capabilities rights’ approach marks a signi�cant improvement overNozickian rights in terms of the value that is attached to freedoms. It maybe noted in the �rst place that this approach shares with Nozickian rightsthe respect for negative freedoms. If I cannot enjoy the negative freedom togo about the task of acquiring food through legitimate means because othersare illegally hindering my efforts, then obviously my right to the capabilityof being free from hunger will not be ful�lled. Capability right thussubsumes negative rights of the kind championed by Nozick and otherlibertarians.
But it goes further, in two respects. First, it enjoins the obligation onothers not merely to respect someone’s negative right by not violating it, butalso to protect it by preventing any third party from violating it. This followssimply from the argument that, if others do not prevent a violation of mynegative right (to, say, cultivate the land I rightfully own) that they canfeasibly prevent, then my capability right (to be free from hunger) will notbe ful�lled to the extent that it could have been. Second, since the veryconcept of capability signi�es the positive freedom to be and to do thethings we value, the respect for capability rights necessarily entails respectfor positive freedoms, in a way that libertarian rights do not.
In summary, if a society values freedoms, then the capability rightsapproach has a lot more to offer than libertarian rights. Speci�cally, it entailsa concern for positive freedoms in addition to the negative freedomschampioned by the libertarians and, even in the case of negative freedom,it entails the obligation to protect, going beyond the minimal obligation ofnon-violation as demanded by some conceptions of libertarian rights.
As we shall later see, it is this broader perspective of rights andfreedoms, as underpinned by the concept of capability rights as goal rights,that seems to underlie the practical approaches to the rights to food inparticular, and economic rights in general, that have been emerging in therecent years.
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Scarcity of r esources and economic r ights
There has been much discussion on whether economic rights, of which therights to food, health, and education are speci�c cases, can be operational-ized for the purpose of practical implementation, or even be meaningfullyconceived as rights. The debate on this issue centres on the implication ofscarcity of resources.
Economic resources are scarce in the sense that their use for one endmust necessarily involve a sacri�ce of some other end. For example,resources used for ful�lling people’s right to food could have been used toful�l their right to housing instead; or the resources used to ful�l the rightsof some disadvantaged segment of the population could have been used toful�l the rights of some other disadvantaged group instead. Thus, wheneverresources have to be spent in order to advance some economic right, it mustimply a foregone opportunity for advancing some other economic right.Given the existence of these opportunity costs, it is entirely conceivablethat the aggregate resources available to a particular community at aparticular point in time may not be adequate to ful�l all economic rightssimultaneously or even to ful�l any of the rights completely.1 So, if we �ndthat people are going hungry, in what sense can we say that their rightshave been violated? And if we cannot say that their rights have been violatedeven when they are going hungry, in what sense can we say that they havea right to food? Given these complexities, many people believe that theconcept of right is not terribly useful in the economic sphere.
The �rst point to note here is that scarcity of resources does notnecessarily create any dif�culty in thinking meaningfully about economicrights. It all depends on what conception of right one is adopting. Forexample, a purely libertarian view of economic rights is entirely immune tothe problems arising from scarce resources. If the right to food is de�ned asa negative right, entailing only a constraint on other people’s behaviour a laNozick, then all that needs to be done in order to ful�l this right is thateverybody refrains from unlawfully hindering anybody engaged in the taskof acquiring food. No resources will be used up in the process, since noneis needed merely to refrain from meddling with other people’s livelihoods.In this case, it is possible, at least in principle, to ful�l all economic rightssimultaneously and completely, no matter how meagre is the amount ofaggregate resources.
The problem arises only when we take a view of right that accordsmuch greater value to freedom than the minimalist value implied bylibertarian rights. The notion of ‘capability right as a goal right’ discussed inthe preceding section is a case in point. If the right to food is interpretedas right to the capability of being free from hunger, and if the ful�lment ofthis right is seen by the society as a goal worth pursuing, then scarcity ofresources does matter. This view of right entails an obligation for the societyat large to actively promote every individual’s positive freedom to be freefrom hunger, not just the obligation to refrain from meddling with his/herlivelihood. But active promotion of positive freedom will, in general, involve
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the use of resources, so the question of opportunity cost will have to beaddressed seriously.
There are several implications of taking opportunity costs seriously.The �rst and the most obvious one is to admit to the necessity of contem-plating trade-offs among alternative rights. People often talk in terms of‘rights are indivisible’, meaning that one must enjoy all rights simul-taneously, or in terms of ‘all rights are equally important’. Such language canlead to confusion unless interpreted carefully. If these expressions are takento mean simply that no right can be disregarded altogether or that no apriori lexicographic ordering can be established among the rights, thenthere is no problem. But if they are taken to mean that ful�lment of eachright is a binding obligation — none can be sacri�ced at all for the sake ofanother — then there can be a problem. Scarcity of resources may oblige usto sacri�ce a bit of one for the sake of another, depending on how far thealternative rights have been ful�lled in a particular situation and what theiropportunity costs are at the margin. The uncompromising view that eachright is utterly inviolable and sacrosanct is compatible with a purelylibertarian notion of rights (in the constraint form), but not with one likecapability rights, which values positive freedom.2
Second, if scarcity of resources makes it inevitable that at least some ofthe capabilities remain inadequately ful�lled, then the question arises whatsort of obligation is entailed by the notion of capability rights. Thinking, forexample, in terms of obligations of the State, one cannot obviously suggestin this case that the State has an obligation to ensure freedom from hungerfor all its citizens here and now. A more reasonable approach would be tosuggest that the State has an obligation to adopt policies that will eliminatehunger as soon as possible, given the constraints of aggregate resourceavailability and alternative claims on resources. The State would have failedin its obligation only if it had failed to adopt and implement such policies.
But if we accept this limitation on the obligation of the duty-bearer, wemust also accept a corresponding limitation on the rights of the claim-holders. Can we then still say that citizens have a right to the capability ofbeing free from hunger? The distinction drawn by Dworkin (1977) between‘abstract rights’ and ‘concrete rights’ is useful in this context.3 An abstractright is a general societal aim; it does not specify how the general aim is tobe weighted or compromised in particular circumstances against othergeneral aims. By contrast, a concrete right is said to exist when the abstractright has been made implementable by specifying the relevant trade-offs andother features that make a right implementable.
In terms of this distinction, we can say that citizens have an abstractright to freedom from hunger under all circumstances, regardless ofresource constraint, but they may not have a concrete right to freedom fromhunger when resource constraint is severe. Even in this situation, however,we can still say that citizens have a concrete right to appropriate policiesfor eliminating hunger in the shortest possible time, once the trade-offsinvolved in designing an appropriate policy have been agreed upon. In thisway, an abstract right to capability is transformed into a concrete right to
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‘policy’.4 Therefore, when scarcity of resources makes it necessary to tonedown the obligation of the State, the corresponding toning down of rightsrequires that we cannot proclaim the concrete right to freedom fromhunger, but we can still proclaim a concrete right to appropriate policies foreliminating hunger.5
A �nal implication of resource scarcity concerns exactly what we are tomean when we talk about ful�lment, non-ful�lment, and violation of rights.In the case of libertarian rights (in the constraint form), this is a straightfor-ward matter. If such a right has not been ful�lled, it must be becausesomeone has violated someone else’s negative freedom. Non-ful�lment ofright in this case is identical with violation of rights; and, by the same token,ful�lment is identical with non-violation.
But these symmetrical relationships may not hold in the case ofcapability rights in a situation of resource constraint. The distinctionbetween abstract and concrete rights is again relevant here. Consider asituation where the society agrees that everybody cannot be free fromhunger in the immediate future owing to resource constraint, but the Stateis seen to be implementing a socially approved policy towards that goal.6 Inthis case, the abstract right to freedom from hunger has obviously not beenful�lled, but we cannot say that these rights have been violated. After all,people’s concrete right to the policies for eliminating hunger has beenful�lled, which implies that best possible efforts have been made to realizethe abstract rights as permitted by resource constraints. One cannot mean-ingfully point to a violation of rights here, even though abstract rights havenot been ful�lled. Thus, non-ful�lment of abstract rights does not necessarilyimply violation, nor does non-violation imply ful�lment of rights.
Consider a second scenario in which an appropriate policy has beenagreed upon, but it is not being implemented. In this case, concrete right topolicy is not being ful�lled — it is actually being violated. By implication,the abstract right to freedom from hunger is also being violated. Non-ful�lment of right does imply violation here, for both concrete and abstractrights. We may, therefore, conclude that abstract rights can be said to havebeen violated only when the concrete right to policy has been violated, nototherwise even though abstract rights may be a long way from beingful�lled. Therefore, in order to be able to say anything about violation ofrights, one must obtain information on concrete rights to policy.
In fact, it will be essential to obtain information on concrete rights topolicy also when one wishes to say something about the promotion ofrights, not just violation. Suppose country A is found to have made greaterprogress than country B over a given period of time in ensuring people’saccess to food, health and education. We would then be entitled to say thatabstract rights have been realized better in country A, but it would notnecessarily follow that State A has promoted the rights better than State B.It is conceivable that country A is better endowed with resources and couldhave achieved much more if the State was really intent upon doing so,whereas State B may have done the best it could given its meagre resources.It would then be fair to say that State B has promoted the rights better, even
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though in terms of actual progress country A has apparently achieved more.Conceptually, then, one needs to make a distinction between progress andpromotion of rights, just as one needs to make a distinction betweenviolation and non-ful�lment of rights.
These observations have important implications for the choice ofindices for monitoring progress in human rights achievement. It is obviousthat the standard indices of human development, especially the indices ofhuman poverty, developed by the United Nations Development Programme(UNDP) can be used without much dif�culty as indicators of the degree offul�lment of people’s abstract rights to food, health, and education. But inorder to get a complete picture of the degree of rights ful�lment, theseindices must be supplemented by information on concrete rights to policy.In particular, one will need to know what kinds of policies have beenpursued by the States, with a view to realizing the rights of the citizens, andthe extent to which these policies have been implemented. Only the latterkind of information will be able to tell whether and to what extent rights arebeing promoted or violated.7
Plural r igh ts: the causal in terconnections
Whether or not rights can be seen as indivisible, they are certainly interde-pendent. There are causal interconnections among the speci�c rights withinthe broad category of economic rights and also between the broad cate-gories of economic and non-economic rights.
The causal connections among the speci�c rights to food, healthcareand education, all of which fall within the broad category of economicrights, are by now well known. From the perspective of capability rights,the right to food is really a proxy for the right to be well nourished and, atthe minimum, to be free from hunger. But nutritional capability does notdepend on food intake alone. Food intake merely determines the amount ofenergy and other nutrients that the body receives, whereas nutritionalcapability depends on how much of this energy and nutrients the body canutilize effectively and how adequate the effective utilization is as comparedwith its requirements. Both the extent of effective utilization and the levelof requirement depend crucially, however, on the state of a person’s health,in particular on the frequency and severity of disease he/she happens tosuffer. In general, ill health raises the requirement for and reduces theeffective utilization of food, thereby diminishing the nutritional capabilitythat can be derived from a given amount of food intake.8 The right tohealthcare is thus complementary to the right to food, from the perspectiveof capability right.
The right to education has a similar complementary effect onnutritional capability. This is especially true of the effect of mother’seducation on the nutritional capability of children. There is a wide body ofevidence from all over the world that shows that higher levels of mother’seducation lead to better nutritional status of children, even after controllingfor other determinants of health.9 In fact, the level of education does not
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have to be particularly high before it begins to have its effect. The evidencefrom South Asia shows that even those women who have not gone beyondthe primary school can have as much as 20% less undernutrition amongtheir children as compared with illiterate mothers (Osmani and Bhargava,1998).
But the effect of education on nutritional capability is not con�ned tothe mother–child relationship alone; it also holds at the level of the societyat large. This can be seen, for example, by looking at the experience of SriLanka and the Indian state of Kerala, whose achievements in the �elds ofhealth and nutrition are well known for being exceptional by the standardsof poor economies. Part of this achievement is explained by the extensiveprovision for primary health care provided by their respective governments.Partly, it also has to do with the high degree of ef�ciency with which thehealth facilities are utilized. Both these aspects, extensive provision andeffective utilization, have been facilitated by the long history of publicprovision of education in these two regions.
The Sri Lankan scholars, for example, have pointed out how thepoliticians had to move towards strengthening the welfare state in responseto the demand of an educated electorate after the Donoughmore Consti-tution had granted universal adult franchise in 1931. The case of Kerala isalso illuminating. Several states in India actually out-perform Kerala in termsof indices of health provision such as per-capita expenditure on health, thenumber of persons per hospital bed and even rural medical facilities perperson, and yet have inferior indices of health achievement as comparedwith Kerala. Education has made a crucial difference here. Many observershave noted from their �eld experience how the educated and politicizedpeople of rural Kerala made sure, by pressurizing the health of�cials ifnecessary, that the existing health centres were fully geared to their service,while similar health centres in the neighbouring state of Tamil Naduremained inactive or under-utilized (for example, Mencher, 1980).10
There are therefore good reasons to see the speci�c rights to food,healthcare, and education as a highly complementary bundle of rights,which, as far as possible, ought to be pursued together so as to maximizethe impact of resource use on nutritional capability. Trade-offs betweenalternative rights may be inevitable in the face of scarce resources, butef�cient trade-offs will require careful consideration of these complementar-ities.
Complementarity also exists between the two broad groupings of rightsinto economic rights, on the one hand, and civil-political rights, on theother. Causal connections between them run both ways. Economic rightsimpinge on civil-political rights because malnourished and illiterate people,who cannot make their two ends meet even after working all day long, havea tendency to resign themselves to their fate; such people are unlikely toraise a stir if denied their civil and political freedom. Conversely, ful�lmentof basic economic rights often provides the foundation on which the battlesfor civil and political rights are fought.11 Examples of many contemporarydeveloping countries testify to this causal connection.12
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It is, however, the other causality, running from non-economicto economic rights, that we shall mainly deal with in the following dis-cussion. One particularly striking illustration of this causal connection is aphenomenon that has come to be known as the South Asian enigma(Ramalingaswami et al., 1996). The enigma refers to the fact that SouthAsia suffers from an exceptionally high incidence of malnutrition comparedwith other poor regions in the world, including Sub-Saharan Africa. Recentestimates show that the South Asian poor have, on average, a slightlyhigher level of income than their African counterparts. Per-capita availabilityof calories is also higher in South Asia and it does not appear fromavailable evidence that South Asia lags behind Sub-Saharan Africa in publicprovision of healthcare and hygiene. And yet, South Asia has a much higherincidence of child malnutrition — as many as 60% of South Asian childrenwere found to be stunted in the early 1990s compared with 39% inSub-Saharan Africa.
Careful statistical analysis with cross-country data con�rms that theexceptionally high level of malnutrition in South Asia cannot be explainedfully by the average levels of the usual determinants of health, such asincome, healthcare, and female education (Osmani, 1997). An additionalfactor of considerable importance is the incidence of low birthweightbabies. One in three new-borns in South Asia happens to be a lowbirthweight baby, as compared with the average of one in �ve in thedeveloping world, and one in six in Sub-Saharan Africa. And recent researchhas shown that low-birthweight babies tend to be more malnourished whenthey grow up, as they happen to be more susceptible to debilitatinginfections. So, the question arises, why is low birthweight such a seriousproblem in South Asia?
The occurrence of low birthweight is mainly a re�ection of poormaternal nutrition, so one would expect that the factors that typicallycause low levels of nutrition should be able to explain the high incidenceof low birthweight in South Asia. But statistical analysis based on developingcountry experience shows that South Asia has a much higher incidenceof low birthweight than what should be expected on the basis ofaverage levels of income, food consumption, health facilities, female liter-acy, and female age at �rst marriage (Osmani, 1997). This �ndingimplies that the average levels of nutritional inputs do not correctly re�ectthe nutritional inputs received by the women of South Asia. That theyare heavily discriminated against in the allocation of food and health-care within the household has been amply corroborated by a largenumber of studies. This discrimination is the primary reason why thewomen of South Asia have such poor level of maternal nutrition comparedwith women in other poor regions of the world. In its turn, thisdiscrimination is a consequence of the relative weakness of the overallsocio-cultural rights enjoyed by women in the patriarchal society of SouthAsia.
The causal connection between the two categories of rights nowbecomes clear. The weakness of women’s socio-cultural rights leads to
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exceptionally low ful�lment of the population’s right to nutritional capa-bility in South Asia. This happens through a process of an intergenerationaltransmission mechanism linking poor maternal nutrition to low birthweightand eventually to the malnutrition of the population as a whole. Malnour-ished mothers beget malnourished sons and daughters at birth; as they growolder, the malnourished daughters become further malnourished due togender discrimination, so when they become mothers they too begetmalnourished children; and the cycle of malnutrition continues.13
While the dismal fact of South Asian malnutrition illustrates one kind ofcausal connection between non-economic and economic rights, there isanother aspect of South Asian experience — mercifully, a happier one —that illustrates a different aspect of this connection. Despite its much higherlevel of malnutrition, South Asia has successfully avoided any major faminesin the past half-century — with the sole exception of the 1974 famine ofBangladesh—while Sub-Saharan Africa has been ravaged by a succession offamines. The contrast between India and China is also intriguing. While thegeneral level of nutritional capability has been much higher in China eversince its communist transformation half a century ago, it is China that hassuffered from a devastating famine in recent history — in the wake of theGreat Leap Forward in the late 1950s — while India has not suffered anyfamine.
These contrasts may appear at �rst sight to be somewhat puzzlingsince, at least in popular perception, both famine and malnutrition are seenas symptoms of inadequate availability of food. In his pathbreaking work onfamines, however, Amartya Sen has shown that modern famines seldomoccur due to an overall shortage of food (Sen, 1981). Some of the worstfamines of modern times, including the much-publicized ones in Africa, haveoccurred in situations that did not involve any catastrophic decline inaggregate food availability. They occurred because speci�c groups of peoplelost their entitlement to food, for various reasons, while a large segment ofthe population remained relatively unscathed. Modern famines are thusalmost always the result of speci�c entitlement failure on the part of somevulnerable groups rather than a generalized catastrophe befalling the entirepopulation.
It follows from this analysis that the way to avoid famine is to protectthe entitlement of vulnerable groups. This task can often be accomplishedwithout any signi�cant increase in the aggregate supply of food. What isabsolutely essential, however, is to devise a set of well-targeted policies thatcan be activated promptly at times of crisis so that the entitlement ofvulnerable population groups can be protected before the crisis can turninto a famine. In colonial India, the British administration had, in fact,formulated such a set of policies, which came to be known as ‘faminecodes’. The problem, however, was that more often than not these codeswere not activated in time or with suf�cient vigour so as to be able toprevent famines. This has changed after independence. The old faminecodes have been revised and adapted to changed circumstances; but, moreimportantly, a relatively open and democratic society has forced govern-
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ments to be on its tip-toe and to activate the codes with alacrity as well asintensity. That is the main reason why, on several occasions in the recentpast, India has been able to pull back from the brink of famine undercircumstances that would almost certainly have cost millions of lives in theolden times.
Much of Africa, on the other hand, had neither the legacy of suchfamine codes nor the kind of open society in which governmentsfelt suf�ciently accountable to people to take the necessary actions. Infact, most recent famines in Africa have occurred in the context of civilstrife involving a total collapse of the system of governance; obviouslyfamine prevention policies can hardly be undertaken in the absence ofan effective government. It is this contrast in the arena of governance andcivil society that explains why famines have been avoided so successfully inSouth Asia but not in Sub-Saharan Africa. The contrast between India andChina has also been explained in similar terms. A democratic polity,buttressed by a relatively free press, makes it almost impossible for Indianpoliticians to avoid taking quick action at the very �rst signs of an impend-ing famine; but the leaders of an autocratic China had no such pressure.Indeed, an examination of the history of famines from all over the worldhas led Amartya Sen to make the remarkable generalization that faminehas never occurred in a democratic and non-colonial political system(Sen, 1999). There can be no better illustration of the connection betweencivil and political rights and the fundamental economic right not to behungry.
The evolution of human r ights to food, health , and education
For a long time after the Universal Declaration of Human Rights in 1948, thecontents of human rights have generally been interpreted rather narrowly toencompass only civil and political rights. The international deliberations thatpreceded the Declaration were, however, fully cognisant of the need to takean integrated view of all civil, political, social and cultural rights. Followingthe adoption of the Declaration, negotiations were to proceed towardspreparing one overall covenant including all these rights. In the event,however, instead of one uni�ed covenant, two separate covenants wereadopted in 1966: one on civil and political rights, and the other on social,economic and cultural rights.
It is the latter Covenant that forms the basis of current discussion in theinternational community on universal rights to food, health and education.Article 11.1 of the Covenant on Economic, Social and Cultural Rightsrecognized the right of everyone to an adequate standard of living, includingadequate food. Article 11.2 enjoins on the State parties the obligation to takenecessary steps for improving production, conservation and distribution offood and international trade, recognizing the ‘fundamental right of everyoneto be free from hunger’.
Article 13 recognizes the right of everyone to education, and urges
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speci�cally that ‘primary education shall be compulsory and available free toall’. To this end, Article 14 requires those State Parties, which have not beenable to secure primary education free of charge, undertake to work out andadopt, within two years, a detailed plan of action for the progressiveimplementation of such education within a reasonable time period.
The right to health is included in the recognition in Article 12(1) of theright of everyone to the enjoyment of the highest attainable standard ofphysical and mental health. Article 12(2) goes on to enjoin that, in order toachieve this right to health, the State Parties must provide for, inter alia, thereduction of still birth and infant mortality, prevention and control ofepidemics and provision of medical services.
The Covenant was realistic enough to recognize that ful�lment ofeconomic rights would typically consume resources that are in limitedsupply. In view of this constraint, it envisaged a progressive realization ofrights. Thus, Article 2(1) states: “Each State party to the present Covenantundertakes to take steps, individually and through international assistanceand co-operation, especially economic and technical, to the maximum of itsavailable resources, with a view to achieving progressively the full realiza-tion of rights recognized in the present Covenant by all appropriate means,including particularly the adoption of legislative measures”. Subsequently,the notion of progressive realization of rights was further elaborated by agroup of independent legal experts in what has come to be known as theLimburg Principles. According to these Principles, “… the obligation toachieve progressively the full realization of the rights requires State Partiesto move as expeditiously as possible towards the realization of rights. Underno circumstances shall this be interpreted as implying for States the right todefer inde�nitely efforts to ensure full realization. On the contrary, all StateParties have the obligation to begin immediately to take steps to ful�l theirobligations under the Covenant.”
Although the foundations were thus laid, actual progress of implemen-tation was painfully slow. It was not until 1976 that the Covenant wasrati�ed by the requisite number of States to give it the status of a Treaty.One of the reasons for this tardiness was an understandable worry on thepart of the State parties that the acceptance of economic rights would putan intolerable burden on them in terms of resources required for ful�llingthose rights. The international community began to realize in the 1970s that,for implementation to be feasible, the provision of the 1966 Covenantneeded to be further clari�ed, elaborated, and set out in more concreteterms. This effort then proceeded via two different routes. One sought totake an integrated view of all socio-economic rights in a comprehensiveconcept of the ‘right to development’. The other route took each compo-nent on its own and tried to operationalize the rights to food, health andeducation separately.
In 1979, the UN Commission of Human Rights expressly recognizedthe right to development as a human right and asked the Secretary-General to study the conditions required for the effective enjoyment ofthe right by all peoples and individuals. Subsequently, a Declaration of the
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Right to Development was adopted by the General Assembly in 1986. Atthe time of adoption, the Declaration commanded widespread supportbut a consensus had yet not been reached. In the years following, attemptswere made to build up that consensus in a number of internationalmeetings, culminating in the World Conference of Human Rights in Viennain 1993. A political consensus was �nally achieved, and the ViennaDeclaration proclaimed the right to development to be a universal andinalienable right, and an integral part of the fundamental rights of the humanperson.
After 1993, the process was intensi�ed through the establishment of aseries of Working Groups and an Independent Expert to further clarify theconcept of the right to development and to suggest concrete ways andmeans of implementing it. This process is still continuing.14
Meanwhile, the attempts to operationalize the speci�c rights separatelyhave also made great strides. The �rst major step was taken in the sphereof health, when the International Conference on Primary Health Care, heldin Alma-Ata in 1978, reaf�rmed that “health, which is a state of completephysical, mental and social well-being, and not merely the absence ofdiseases and in�rmity, is a fundamental human right” (ICPHR, 1978). ArticleV of the Alma-Ata Declaration set out the target of “attainment by all peoplesof the world by the year 2000 of a level of health that will permit them tolead a socially and economically productive life”, and also a mechanism:“Primary health care is the key to attaining this target as part of developmentin the spirit of social justice”.
Subsequently, the strategic focus was broadened from primary healthcare to include a comprehensive range of actions designed to promoteall-round health. The �rst move in that direction was made in the OttawaCharter, adopted in the First International Conference on Health Promotion,held in Ottawa in 1986. It set out a programme of action to achieve Healthfor All by the year 2000 and beyond. The programme of action was furtherre�ned and elaborated in the Adelaide Recommendations of 1988, theSundsvall Statement of 1991 and the Jakarta Declaration of 1997.
The �rst major milestone in the sphere of education was the ‘WorldDeclaration on Education for All’, known as the Jomtien Declaration,adopted in 1990 (UNESCO, 1990). Follow-up conferences held in Ammanand Delhi reviewed the pace of progress and expressed particular concernat the persistence of wide gender gaps in many countries in the ful�lmentof the right to have basic education.
In the sphere of food, the �rst major step was taken when theConvention on the Rights of the Child was adopted in 1990. This conven-tion asserted the right of every child to adequate food and nutrition. Sincethis Convention has been almost universally rati�ed (unlike most otherConventions on social and economic rights), it can be said that the worldcommunity has �nally committed itself fully to eliminate the hunger ofchildren. But the comprehensive commitment to eliminate overall hunger,of children and adults alike, has been slow in coming.
The next major breakthrough came at the World Food Summit held at
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Rome in 1996, which adopted the Rome Declaration on Food Security anda Plan of Action to reduce the number of undernourished people to half the1996 level by the year 2015. In order to enhance the implementability of thePlan of Action, the World Food Summit called upon the United Nations HighCommissioner for Human Rights, in consultation with the relevant treatybodies and other relevant agencies and institutions, to better de�ne therights related to food in Article 11 of the Covenant, and to propose ways toimplement and realize these rights.
The relevant treaty body for monitoring the right to food is theCommittee on Economic, Social and Cultural Rights. In response tothe request of the Food Summit, this Committee adopted, in May 1999, theGeneral Comment No. 12. This Comment is based on a path-breaking studyon the right to food by Asbjorn Eide (1989, 1999), and remains to date themost signi�cant and the most authoritative statement of exactly whatobligations for State parties and international agencies are entailed by thecommitment to the right to food.
The obligation for the State is speci�ed at three levels: the obligation to‘respect’; the obligation to ‘protect’; and the obligation to ‘ful�l’ the humanright to food. The obligation to ‘respect’ entails that the State should respectthe resources owned by the individuals, their freedom to �nd a job ofpreference, to make the best possible use of their resources as they see �t,and to take any legitimate action necessary to meet their needs. However,since third parties may negatively interfere with an individual’s possibilitiesof solving his/her food needs, the State also has an obligation to ‘protect’ theindividuals from such interference. The third and �nal obligation, namelythe obligation to ‘ful�l’ the rights, has been subdivided into two parts: to‘facilitate’ and to ‘provide’. The obligation to ‘facilitate’ means that the Statemust pro-actively engage in activities intended to strengthen people’s accessto food; and the obligation to ‘provide’ means that the State must directlyprovide food whenever an individual or a group is unable to, for reasonsbeyond their control, provide for themselves the food they need (forexample, the old and the in�rm, people displaced by wars or naturaldisasters, etc.).15
It is interesting to note how remarkably similar these obligations are tothe obligations corresponding to the notion of ‘capability rights as goalrights’ discussed in the �rst section. As already noted there, capability rightentails the obligations: (1) not to �out the negative freedom of an individualto go about the task of acquiring food through legitimate means; (2) toprotect negative freedom whenever it is threatened by a third party; and (3)to actively promote people’s positive freedoms. The obligations to respect,protect and ful�l already referred to correspond precisely to these threeimplications of capability rights. It is thus fair to say that, consciously orotherwise, it is the notion of capability rights as goal rights, �rst propoundedby Amartya Sen, that provides the philosophical underpinning of theconsensus that seems to be emerging in the international circle on theoperational meaning of the right to food in particular, and socio-economicrights in general.
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An operational framework for implementing and monitor ingthe r ights-based approach to food, health and education
As the preceding discussion shows, much progress has been made towardsclarifying the meaning of economic rights and spelling out, in some detail,the obligations of states towards their citizens. The next step is to clarify thenature of the operational framework through which states and other duty-bearers may begin to ful�l their obligations. This framework must alsoprovide an effective mechanism for monitoring and evaluating the perform-ance of duty-bearers.
A monitoring mechanism currently exists, but it is not terribly effective.An understanding of the reason for its ineffectiveness will be a good startingpoint for clarifying the nature of the operational framework that is neededfor implementing and monitoring the ful�lment of economic rights.
In 1985, the United Nations Social and Economic Council establishedthe Committee on Economic, Social and Cultural Rights (CESCR) primarilyto monitor the implementation of the International Covenant on Economic,Social and Cultural Rights. The Committee is composed of 18 independentexperts who serve in their individual capacities and, although nominated bytheir governments, are not themselves government representatives.16
The State Parties to the Covenant (to date there are 137 of them) arerequired to submit periodic progress reports to the Committee, whichmeets twice a year and reviews �ve to six reports in one sitting. Thesereports are prepared according to the Committee’s general guidelines forreporting, which are intended to facilitate the preparation of reports andensure that the issues of principal concern are dealt with in a systematic andinformative manner. Representatives of the State Parties formally present thereport during a Committee session and engage in an extensive dialogue withthe Committee members. At the end of the dialogue, the Committee adoptsa set of concluding observations focusing on several aspects: factors thatimpede the implementation of the Covenant, positive factors, principalsubjects of concern and suggestions and recommendations.
In making its concluding observations, the Committee draws upon, inaddition to the submission of State Parties, any other data it can collect fromindependent sources. In this respect, the non-governmental organization(NGO) community plays a major role. The Committee welcomes statementsfrom NGOs regarding the status of economic, social and cultural rights inspeci�c countries, and also relies on them for monitoring and reporting onthe follow-up at the national level. The concluding observations do not carryany legally binding status, so the State Parties can afford to ignore them withlegal impunity should they choose to do so. However, the involvement ofNGOs at every step of the monitoring process makes a potentially signi�cantcontribution here by creating a pressure from within the civil society, whichthe State Parties have to reckon with.
It would thus appear that a fairly solid monitoring mechanism has beenset up at the international level, giving some real content to the accountabil-ity that the State Parties’ have, in principle, incurred to the international
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community by ratifying the Covenant. One practical problem is that, sincethe Committee can consider at most 10–12 reports in a year, it would takemore than 10 years on average to come back to the same country to reviewthe progress made in the interim. However, the involvement of NGOsprovides at least a potential mechanism for keeping up the pressure in themean time and for continuing with informal monitoring at the level of thecivil society — both national and international.
So the system exists, but in terms of practical outcome there is notmuch evidence of State Parties adopting a rights-based approach to meetingthe basic economic needs of their citizens. This may be explained in part bythe fact that the Committee’s concluding observations do not have a legalstatus, no matter how damning they might be. But there is, in fact, a morefundamental problem. It lies in the absence of a proper mechanism forsetting up the benchmarks, against which monitoring is to be carried out.Everyone agrees that benchmarks are essential for any meaningful monitor-ing, but no one is quite sure how to �nd them. It is easy enough to measurethe actual and target levels of people’s access to food, health and education,which typically serve as benchmarks for human development. But can theyalso serve as benchmarks for human rights ful�lment? Is progress in humandevelopment the same thing as progress in economic rights? These ques-tions have yet to be clari�ed.
The consequence of this absence of clarity can be seen from anobservation made by the Committee on Economic, Social and CulturalRights in its General Comment no 12(2) of May 1999: “The Committee hasnoted that while reporting guidelines are available relating to the right toadequate food, only few States parties have provided information suf�cientand precise enough to enable the Committee to determine the prevailingsituation in the countries concerned with respect to this right and toidentify the obstacles to its realization”. Why is it the Committee does notget what it seeks? One commentator has put down the whole problem tode�ciencies in the format in which States are required to report to theCommittee: “The reporting format invites States to cut and paste fromwhatever reports they have on the food and nutrition situation of thecountry; and it is really not human right reporting”.17 Actually, the reportingformat as such is not the issue. Proper information on human rights is notforthcoming mainly because we have not yet found a way of distinguishinghuman rights achievement from human development achievement. Mostpeople have an intuitive understanding that these two are not the samething, but it is not clear exactly where the difference lies. That is why, eventhough the Committee’s reporting format is intended to elicit informationon human rights, it ends up receiving little more than the standard infor-mation on human development.
A possible resolution of this problem can perhaps be found by startingfrom the distinction between abstract and concrete rights discussed earlier.It was argued in the second section that achievement of abstract rights withregard to food, health and education can be measured by indices ofachievement in human development. In this sense, the information that is
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provided by the State parties and debated within the Committee can be saidto be dealing with the question of how far people’s abstract rights are beingful�lled. This information is useful in its own right, but it is not of muchhelp for evaluating the State Parties’ success in meeting its obligationsbecause, in a situation of resource constraint, the extent of ful�lment ofabstract rights does not necessarily correspond with State Parties’ effort, orthe lack of it. Abstract rights may advance very little despite a State party’sbest efforts. It will then be wrong to hold the State party responsible formeagre achievements.18 When resources are scarce, the only obligation ofState parties is to implement policies for progressive realization of rights,and it is only for these policies that they can be held responsible. In otherwords, it is the citizen’s concrete rights to policy, rather than their abstractrights, which should be the principal object of monitoring. The assessmentcriterion will then be: how well the State Parties are adopting and imple-menting policies for progressive realization of rights. The policies proposedand the targets speci�ed by the State Parties will then serve as the bench-mark, and success or failure must be judged against those benchmarks.19
However, it is not enough just to have, or even to implement, a nationalstrategy for realizing the rights. The Covenant of Economic, Social andCultural Rights, while allowing for progressive realization of rights inrecognition of resource constraint, enjoins upon each State party theobligation to move towards full realization of rights as expeditiously aspossible by the making the best possible use of available resources. Thismeans that, in order to serve as a valid benchmark, the plan or the strategyadopted by a State must represent the best possible use of resources. Or, toput it differently, the planned rate of progressive realization must representthe maximum feasible rate of realization permitted by resource constraint.
But the problem is how can we know that the plan adopted andimplemented by a State does actually represent the best possible use ofavailable resources? What if the State deliberately adopts too unambitious aplan, spending relatively few resources for the enhancement of people’srights to food, health and education, and yet claims that it is moving towardsprogressive realization of rights to the best of its ability given the resourceconstraint? Similarly, when a plan fails to be implemented in full and theState claims that the shortfall was caused by factors beyond its control, howcan we be sure that there was indeed nothing more the State could possiblydo? To put it bluntly, how can we make sure that the State does not cheat?
One might think that an expert body, like the Committee on Economic,Social, and Cultural Rights, could ensure this by carrying out an independenteconomic analysis of the resource constraints facing a State party. But thisis not so simple, because resource constraint entails trade-offs, and trade-offsinvolve value judgements, and value judgements are not in the domain ofindependent experts. Consider, for example, the case where the Statejusti�es meagre achievement in abstract rights to food by arguing that anyattempt to increase the poor’s access to food at a faster rate will involvesevere depletion of natural resources, which will jeopardize the futuregenerations’ right to food. Or the State might argue that the poor’s access
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to food can be increased more rapidly only by taking land away from therich, which will violate the latter’s right to property. In either case, the Statewill argue that the inevitability of trade-offs between rights has forced it goslow on the realization of abstract rights to food. After all, the Committee onEconomic, Social and Cultural Rights has itself observed in its GeneralComment No. 12(7) that accessibility to food should be ensured “… in waysthat are sustainable and that do not interfere with the enjoyment of otherhuman rights”. Therefore, a State that invokes the rights of future genera-tions or other people’s right to property to justify its go-slow policy mayclaim that it is adhering precisely to this dictum.
Others, including the Committee, may of course feel that the State istrying to hide its inability to advance the cause of rights behind thesmoke screen of trade-offs. They might feel, for example, that the rightsof present generation are being sacri�ced excessively in the name of futuregenerations, or that some people’s right to property is being accordedundue weight compared with other people’s right to food. Whateverthe strength of these feelings, the problem, however, is that outsiderscannot be the �nal arbiter on this matter. How the rights of different groupsof people or different rights of the same group of people ought to beweighed against each other is a matter of value judgements, and no-oneother than the people of the society concerned are entitled to make thesejudgements.
We would thus appear to have reached an impasse. We have arguedthat monitoring of human rights must focus on concrete rights to policy andwe recognize that policy formulation under resource constraint must in-volve trade-offs. But it is obvious that almost any policy can be justi�ed byinvoking some suitably chosen trade-offs; and since an external monitoringagency cannot have any say on the acceptability of value judgementsunderlying the trade-offs, it is practically impossible for such an agency tochallenge a policy presented to it by a State party. So long as the declaredpolicy has been implemented reasonably well, the agency must give its sealof approval no matter how little people’s abstract rights have been advancedby the policy so approved. Monitoring in this situation can degenerate intoa farce; worse still, it can become counterproductive by legitimizing what-ever the State parties are doing or, rather, failing to do.
The only way out of this impasse is to devise a mechanism whereby theState parties can be prevented from justifying an inadequate policy byinvoking an arbitrarily chosen set of trade-offs. Trade-offs are, of course,inevitable and so is the use of value judgements, but the trade-offs used informulating a policy must re�ect the value judgements of the society atlarge. This is possible only if policies are formulated through a participatoryprocess — one in which representatives of different segments of the societyengage with each other to decide how best the cause of different humanrights can be advanced given the constraints and their possibly con�ictingvalue judgements. Such a process will inevitably involve bargaining andnegotiations, and will require compromises on value judgements, but if theprocess is truly participatory then the policies emerging out of these
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compromises are the only ones that would embody the value judgements ofthose who can claim to be the �nal arbiters: namely, the society at large.Therefore, only the policies emerging from a participatory process cancount as acceptable policies for progressive realization of rights given theconstraints. These are the only ones that can be used as valid benchmark formonitoring the State’s success in ful�lling the citizen’s concrete right topolicy.
Once a participatory mechanism for decision-making has been estab-lished, the same mechanism can also serve as the monitoring mechanism. Ifthe State is failing to implement the agreed policies, the same participatoryprocess may be used to investigate the causes of the shortfall and to decidewhether the shortfall was beyond the control of the State. If the State partyis found to be culpable, the same process can then be used to exert thenecessary pressure on the State to take remedial actions. The bulk of themonitoring responsibility can thus be shifted from international agenciessuch as the Committee on Economic, Social and Cultural Rights to nationalforces. The main monitoring activity of the Committee will then consist ofoverseeing that the actual decision-making processes at the national level aregenuinely participatory.20
In its General Comment on the right to food, the Committee onEconomic, Social and Cultural Rights has explicitly recognized the need fora participatory decision-making process: “Appropriate institutional mecha-nisms should be devised to secure a representative process towards theformulation of a strategy, drawing on all available domestic expertiserelevant to food and nutrition” (General Comment No. 12(24)). But themotivation of this recognition is very different from that which we areproposing here. As the second part of the quotation reveals, participation isvalued by the Committee for its instrumental role in promoting the right tofood by ‘drawing on all available domestic expertise relevant to food andnutrition’. In addition, of course, participation has an intrinsic value in so faras effective participation in decision-making amounts to exercising thecitizens’ political and civil rights. Both these aspects of participation arevaluable, but the particular aspect we are underlining here is valuable for adifferent reason. Participation is valuable because it is only through aparticipatory process that policies can be designed which are acceptable asbenchmarks for monitoring the State’s success in moving towards progress-ive realization of rights.21
It follows from the preceding analysis that effective monitoring ofhuman rights achievements in the �eld of food, health, and education is notpossible for the majority of countries at the present moment, for the simplereason that a participatory mechanism for decision-making does not exist inmost of them. Therefore, the very �rst pre-requisite of implementing andmonitoring a rights-based approach to human development is to encouragethe establishment of a genuinely participatory process at the national level.A few countries have been making encouraging progress in this regard. Thetwo most promising cases in the developing world are Brazil and SouthAfrica.22
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In Brazil, the �rst signi�cant move was made in 1995 when the NationalFood Security Council was replaced by Communidade Solidaria. Operatingdirectly under the supervision of the country’s President, this agency bringstogether elements of both State and civil society to deliberate on foodsecurity issues. A strategy-building co-operative network now involves, interalia, the Ministry of Health, the Ministry of Planning, UNICEF, and thenon-governmental network Agora. In 1998, the Ministry of Health initiateda process of developing health policies through this participatory mechan-ism. The �rst sector chosen for policy development was the national foodand nutrition sector. As the �rst step of a step-by-step approach, thisparticipatory process has yielded a policy for dealing with iron-de�ciencyanaemia, which is known to be to be the most prevalent nutrition problemin Brazil.
In South Africa, the focal point of the participatory process is the SouthAfrican Human Rights Commission. The country’s Constitution has empow-ered the Commission to: investigate and report on the observance of allhuman rights, including economic, social and cultural rights; take steps tosecure appropriate redress where human rights have been violated; conductresearch on the realization of rights and provide human rights education. InMarch 1999, the Commission, in co-operation with UNICEF and the WorldAlliance for Nutrition and Human Rights, held a conference in Johannesburgon the right to food and nutrition. Extensive participation by representativesof government departments and representatives of the civil society resultedin a set of concrete proposals to develop a rights-based approach to nationalfood and nutrition strategy.
The Brazilian and South African initiatives have still a long way to go,but they are moving in the right direction. Activities like these are the onlyfeasible way of implementing as well as monitoring a rights-based approachto food, health and education.
Acknowledgements
The author is grateful to the staff of the Human Development Report Of�ceof UNDP and participants in seminars organized by the UNDP in New Yorkand Bangkok for many helpful comments and suggestions. However, theusual disclaimer applies.
Notes
1 In many developing countries, people go hungry even when the aggregate availability offood is adequate to feed everyone provided the available food could have beendistributed more equally. One cannot, however, conclude form this observation thatresource constraint has nothing to do with the non-ful�lment of people’s right to food.In a market economy (as distinct from a command economy), the most important wayin which the available food can be made more accessible to the poor is by taking actionsthat raise their productivity: either as direct producers of food, or as producers of othercommodities that can be exchanged for food. These actions would almost invariably cost
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resources, so aggregate resource constraint could still be a binding constraint toremoving hunger even when aggregate food availability is enough to meet everyone’sneed.
2 It is perhaps no coincidence that the language of indivisible rights or inviolable rights,etc., emerged at a time when rights were generally conceived as libertarian rights linkedto negative freedoms. The concepts of civil and political rights belong to this category,so the language was appropriate when the focus was primarily on these non-economicrights. It is only recently that the category of positive rights linked to positive freedomsis gaining wide acceptance, and it is also being recognized that the notion of economicrights ought to belong to this category, but the language of rights has yet to catch upfully with these changes.
3 Sen (1982b) has illuminatingly discussed the relevance of this and other distinctions inthe concept of right in the context of the right to food.
4 Sen (1982b) uses the term ‘metaright’ to denote such rights to policy. However, sincethe notion of ‘metaright’ has the connotation of the ‘right to a right’, which is not thesame thing as the ‘right to a policy’, the terminology may be slightly confusing.
5 Since concrete right to policy is all we have in operational terms in this situation, onemight ask: does it still make sense to talk in terms of an abstract right to freedom fromhunger? Why not simply talk in terms of long-term aspirations instead? The answer, inmy view, is that it is the abstract ‘right’ to freedom that generates the concrete ‘right’to policy; an ‘aspiration’ will not beget a ‘right’. For a powerful expression of scepticismabout the possibility of taking a right-based approach to hunger, see O’Neill (1986,1996). For an equally powerful rebuttal, see Sen (1998).
6 The signi�cance of the quali�er ‘socially approved’ is discussed at length in the �nalsection. The point, brie�y, is that unless the policy being pursued by the State happensto be socially approved, in a sense to be de�ned in the �nal section, there is somedif�culty in judging whether people’s concrete right to policy is being ful�lled or not.
7 For a somewhat different perspective on this point, see Chapman (1996).8 These issues are extensively discussed in the set of papers collected in Osmani (1992).9 Much of this evidence is summarized in Caldwell and Caldwell (1985), Hobcraft (1993)
and LeVine et al. (1994).10 An additional factor in Kerala was the high degree of politicization that was created
among the masses by the active presence of communist parties at the grass-roots level.For illuminating accounts of Kerala’s journey to exceptionally high levels of nutritionalcapability, see, among others, Panikar and Soman (1985) and Ramachandran (1996). Thecases of both Sri Lanka and Kerala are discussed extensively in Osmani (1991).
11 This is not to suggest that economic rights have, or should have, either a moral or atemporal precedence over non-economic rights.
12 For discussion and illustrations of both directions of causality, see, among others, Collierand Hoeffer (1997), Dasgupta (1993), Dreze and Sen (1989), Haddad and Oshug (1998),Heggenhoughen (1995), Messer (1994) and Messer et al. (1998),
13 The link between child malnutrition and civil and political rights is further explored inSmith and Haddad (2000).
14 For an authoritative account of these developments, see Sengupta (1999). See alsoWeerelt (1998).
15 For further details on these issues, see Eide (1999), Food and Agricultural Organisation(1998), Oshaug et al. (1994), United Nations Development Programme (1998), UNHCHR(1999), Toebes (1999), and World Alliance for Nutrition and Human Rights (1998).
16 The following discussion on the workings of CESCR draws upon a paper presented byDandan (1999) at the 26th session of the UN Sub-Committee on Nutrition and theparticipants’ comments on the paper.
17 A comment made on Dandan’s (1999) paper by one of the participants of the 26thsession of the UN Sub-Committee on Nutrition held in Geneva. See SCN News, No. 18,July 1999, ACC/SCN, World Health Organization, Geneva.
18 This statement is strictly valid only for the ‘ful�l’ part of the three levels of State’sobligation discussed in the preceding section. For ‘respect’ and ‘protect’ functions, the
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State can be easily held responsible for non-achievement, since resources are hardlylikely to b e the binding constraint in these cases.
19 The Committee is actually aware of the need to formulate appropriate policies at thenational level. In its General Comment No. 12(21), it states that speedy realization ofrights “… will require the adoption of a national strategy to ensure food and nutritionsecurity for all, based on human rights principles that de�ne the objectives, and theformulation of policies and corresponding benchmarks”. But the adoption of a nationalstrategy is seen here simply as a means of realizing the rights, whereas what we arearguing is that the adoption of strategy is also essential for monitoring progress becauseit is only with reference to the benchmarks established by the strategy that success orfailure on the part of the State can be measured.
20 The importance of setting benchmarks through a participatory process is also stressed byHunt (1998). There is, however, a slight difference in the approach. While Huntproposes that the government, the CESR and the NGOs will all create their ownbenchmarks and have a debate on that basis, the present paper suggests that a single setof benchmarks will have to be agreed between the state and the civil society through aparticipatory process, and the CESR will monitor on the basis of those benchmarkswithout, however, setting any benchmark of their own. The two approaches are not,however, inconsistent. The debate envisioned by Hunt may be seen as the �rst steptowards negotiating a single set of benchmark.
21 The value of participation we are underlining here is also an instrumental one, in thesense that it permits meaningful monitoring, but not in the sense (also a valid one) thatit directly promotes fuller realization of rights by making use of the knowledge andexpertise of the participants.
22 For more on the Brazilian experience, see Valente (1998) and Coitinho (1999), and onSouth Africa, see Thipanyane (1999).
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