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Some free market advocates feel that governments should take no direct responsibility for dealing with hunger. They see government involvement with hunger as an unwarranted intrusion, distorting the play of market forces and creating economic inefficiency. As JeanPhillippe Platteau observes:
In Europe, it was precisely with the advent of capitalism that the old values and institutions (like the Poor Laws in England) guaranteeing food security for everybody came under the strong attacks of the heralders of the new "laissez faire" order. Interestingly, incentive considerations were the main arguments which the latter put forward: only poverty can incite (force) the lower classes to work and, according to [Townsend's Dissertation on the Poor Laws of 1786] hunger is actually the most effective pressure, because it is "peaceful, silent and continuous" [18].
We see similar reasoning in recent reforms in China designed to "smash the iron rice bowl" [19]. Fortunately, however, many modern economists recognize that economic efficiency is not the same as social efficiency, and there are good reasons to intervene in the marketplace. In particular, there are good reasons to assert and defend human rights.
Many agree that, regardless of the type of economy, it is the duty of governments to assure that all their citizens can at least subsist:
In this concept of subsistence rights and duties, the emphasis lies, not on "feeding" or "maintaining" people but on creating a social and economic environment which fosters development and hence need not depend upon charity. To take seriously the notion of subsistence rights and to value them as universally applicable "minimal reasonable demands" on the rest of society means that the satisfaction of basic human needs must be a primary and explicit focus of development [20].
Or, more simply, "A government's basic job is to provide a system in which people can meet their own and their children's basic needs" [21]. The point is reaffirmed in Principle 25 of the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, which says that "States Parties are obligated, regardless of the level of economic development, to ensure respect for minimum subsistence rights for all" [22].
It is the duty of governments to structure their societies in a way that prevents malnutrition. Under ideal governance there would be no need to even raise the question of a right to nutrition. The idea of nutrition rights comes up only because communities and governments are imperfect.
If government ought to be providing certain kinds of services, then we must face the vexing question: does the private sector's offering these services get the government off the hook, allowing government to evade responsibilities it really should fulfil? Should churches close their soup kitchens?
The solution lies in making some distinctions, recognizing that there are some social services best left to the private sector while others ought to be provided by government. It is reasonable to call upon the local community to help out neighbours in temporary distress, from floods, temporary unemployment, or accidents, for example. We should gladly carry over some soup and blankets, directly or through our churches and clubs to respond quickly to such transitory problems. But chronic hunger and homelessness is a responsibility of government. The private sector should not ameliorate these problems so thoroughly as to allow government to avoid facing up to them. Chronic problems reflect systemic failures, and thus are a fundamental responsibility of government.
Perhaps capable adults should not be fed by the state, but few would argue that small children in crisis should be ignored. Certainly the responsibility for feeding children falls in the first instance on the child's family, but the community and the government bear some responsibility as well. As a matter of principle, childhood malnutrition is one of those issues for which there should be a recognized obligation of government to provide some sort of services. There should be a recognized legal obligation of government to provide services to assure that every child is adequately nourished.
The services provided would take several different forms, with direct feeding programmes only a small part of the package. There should be a variety of health and care services as well. This is why we speak of a right to adequate nutrition, and not simply a right to food. The question of what those services should be may be debated, but there needs to be acknowledgement of the principle, enshrined in law. The family and the community have responsibility too, but there should be a clear obligation on government to do what needs to be done if the family's and community's response is inadequate.
This obligation then helps to assure that government is motivated to support the community in fulfilling its responsibility. Community groups working on the local malnutrition problem should be able to rely on their local and state governments for help, whether for money, contacts, transportation, or moral support and encouragement. It is the responsibility of government to help such community groups. Moreover, the government should be grateful for the opportunity to help the community use its resources to deal with local malnutrition, for otherwise the burden would fall on the government itself.
Rights and the law in general can be powerful instruments, establishing entitlements to as well as protections from. And the law can be used not only in punitive ways, but also in positive ways to support and reinforce those who do the right thing. We should not fall into the trap of thinking of the implementation of law as necessarily involving punitive sanctions. The law can be used to mandate positive life-affirming actions as well. Malnutrition among children should be viewed as illegal, a condition that is not allowed, but this does not mean that anyone should be punished. The presence of a malnourished child should trigger a series of legally mandated actions by families, communities, and governments that are designed to remedy the condition. Just as local police can depend on backup from higher jurisdictional levels when needed, local agencies trying to deal with malnutrition should be backed up to the extent necessary to assure that the problem is solved.
National legislatures should be persuaded to affirm the principle that children have a right to adequate nutrition. However, that is the beginning, not the end, of the action that is needed. Programmes fitting local circumstances need to be designed to implement the idea. Indeed, in many cases legislators will be reluctant to affirm the principle unless they first get a clear picture of its implications for action.
There have been many efforts to gain recognition of a right to nutrition within individual countries and internationally. Unfortunately, this has often been equated with the general effort to alleviate malnutrition, and advocates of the right to nutrition have simply recommended ways of improving the production and distribution of food. Concerned people have created many different kinds of food supply programmes ranging from programmes designed to deliver food directly into the mouths of children, as in the Indian anganwadis, to the massive international transfer of surplus food through the World Food Programme.
It is important to distinguish between the achievement of adequate nutrition and achievement of a right to adequate nutrition. Nutrition rights are based on the quality of protection one has against the occurrence of malnutrition. You cannot tell how much protection people have against, say, fire, by asking people if their houses are on fire at the moment. To assess the quality of the protection one has to look into the institutional arrangements that are in place, ready to act if and when disaster threatens. The fact that most people in any given country are well fed tells us nothing about the situation of marginalized people, and it says nothing about what might happen in the future if wealth declines or government priorities change.
Past efforts to ameliorate malnutrition have all been valuable, but they have been matters of charity and chance, and not the implementation of real rights. True implementation of a right to something means not just providing some amount of that thing to some people; it means assuring that every individual who is entitled to it gets his or her full share of it.
A clear distinction should be drawn between the broad notion of children's interests involving many different things such as shelter and a nurturing environment, and the more limited subset of those things that are—or should be—formally recognized as rights in law. There are many good things for which there is no acknowledged right. Some things we may feel ought to be recognized as rights have not been codified in written law. Some of what we may agree are rights in principle or a matter of "natural law" are not yet rights in the written "black letter" law.
The focus here is on formal rights explicitly stated in the law. One can pursue interests in alleviating malnutrition in many different ways, but to use the language of rights about these interests means that one is going to use the law. Promoting the rights of malnourished children requires that we talk about the creation of new law or the implementation of existing law relating to their rights.
Soft rights are not spelled out in the law, or if they are there is no strong and effective mechanism to assure their implementation. The Convention on the Rights of the Child, for example, in itself establishes only soft rights. They can be transformed into hard rights if national and local governments create suitably strong national and local laws along with effective agencies to implement the rights in the convention.
Hard or strong rights are clearly articulated in the law and are accompanied by effective implementation and accountability mechanisms. Hard rights have a history of case law through which the meaning of the right is tested and refined. There is clear recourse in law for individuals whose rights are not fulfilled and clear public accountability.
Rights are important because without clear rights, those who are more powerful, more highly educated, or better connected have an advantage in obtaining services. Clearly established rights empower the weak, levelling the playing field a bit so that the weak are not so disadvantaged.
Governments can do many different things that will enhance the likelihood that their people will be adequately nourished. They can take steps to assure that the economy functions smoothly, provide for health and sanitation services, undertake land reform programmes, subsidize staple foods, create social security programmes, impose legal obligations on parents, and many other things. Such steps are likely to result in adequate nutrition for the great majority of the population. However, the position taken here is that there is no hard right unless the government serves as backup, accepting the obligation to fulfil the need in cases of failure of other more indirect means of fulfilling it. There is no hard right to adequate nutrition unless the government guarantees to meet the need if other means fail.
It would be neither possible nor wise to provide a hard right in this sense for all claimants, but the argument here is that it should be feasible at least to some extent for those who are most vulnerable: small children who are clearly malnourished.
We cannot tell a small child that we are sorry, but your family and perhaps your local government have failed you, and there is nothing we can do about it. We cannot tell a small child that there is a war that simply must be fought on the other side of the world, so you will not have enough food. Children's nutrition should not be understood as a matter of priorities because when it is, children lose. Adequate nutrition for children should be recognized as an assured, unqualified right. The demand should be not merely for increased funding but for recognition that children have a right to adequate nutrition. The principle must be recognized; then we can discuss details of how it is to be fulfilled in different circumstances.
Establishing hard rights is not always politically practicable, but the vision should be kept before us as an ideal, helping to set our course in the longterm campaign to strengthen children's rights.
We should aspire to hard international human rights law in the future regularly elaborated through case law. For now, however, the soft international human rights law that we have is best understood as a guide to the formulation of national-level human rights law. It is there, at the national level, that we expect to see it hardened first. Nations will be willing to look after their own most vulnerable children before they are willing to look after the world's most vulnerable children.
When a child is not adequately nourished it is not only the child's family but the society as a whole that have failed that child. There should be mechanisms for calling governments to account and correcting that failure. If the law says that children are entitled to some particular service as a matter of right, that law also should establish an accountability mechanism to assure that the service is provided adequately and effectively.
An implementation mechanism for achieving a goal has both monitoring and response components. The monitoring component assesses the distance and direction from the goal, and the response component acts to move toward the goal. An automobile driver, for example, monitors through her eyes, and responds by pressing the pedals and turning the steering wheel. Where the goal is to improve children's nutrition, the monitoring element could use indicators such as food intake or anthropometric measures to assess the location and extent of malnutrition in the society. The response element would involve feeding, health, and care programmes targeted to where the monitoring component showed it was needed.
There are many ways in which such a system could go wrong. The monitoring component may measure the wrong things, or it may not be very sensitive. Or the responses may not work well. For example, income transfers to the family may be diverted to uses other than meeting the needs of the child. Government-funded school lunch programmes that feed all public school students may feed many who do not need assistance, and thus may be unnecessarily costly. People who are technically entitled to a particular benefit may not know about it or may have difficulty accessing it. A child who is fed at a centralized feeding programme may for just that reason get less to eat at home. An effective system would notice these problems, and make constant course corrections to navigate the system toward the goal. The design of a system for assuring children's right to adequate nutrition would have to be refined over time until it could be shown that it really works.
Social service programmes usually reach only some of the needy some of the time. Governments may boast about the number of individuals served, but they tend to be silent about the number of people who are needy but are not served. Accountability means paying attention to that shortfall. The obligation is not simply to provide some service, but to end the problem of malnourished children. Any government that really wants to end childhood malnutrition should be willing to make itself accountable for meeting that challenge.
Assurance that services will be provided results not simply from the creation of service programmes (e.g., school lunches, nutrition education programmes) but from institutionalized mechanisms to establish accountability. An accountability (or compliance) mechanism watches the implementation mechanism to make sure it does its job well. It is located outside the implementation mechanism, and may have its own separate monitoring procedures. Governments have their legislative auditors and Inspectors General to make sure government agencies stay on track. In the United States, there is a compliance monitoring procedure designed to assure that the states provide disabled children the educational services to which they are entitled under the law. If a government wants to assure that it will always be attentive to the concerns of children, it could pay for an independent Children's Ombudsman to handle complaints against the government [23].
Many different kinds of measures can be used to provide accountability [24]. In a well-designed system of rights there will be specialized government agencies (such as Inspectors General) to assure the accountability of implementing agencies. If they are absent or ineffective, non-governmental agencies can hold the implementing agencies to account. The use, or threat of use, of the judicial system can be a potent means for keeping implementing agencies on track, but other more political means (such as public information campaigns through the media) may be used as well. In Hawaii, the non-governmental Children's Rights Coalition has launched a suit against the state government for its failure to provide mandated educational services for learning disabled children. The legal action is being accompanied by a public information programme that will help people to understand their children's rights. If there were a right-to-adequate-nutrition on the books, such a coalition also could bring action against the government for failing to prevent malnutrition.
In general, if the system threatens to go off the tracks, the compliance or accountability mechanism sounds an alarm and takes action to correct the implementation mechanism. Accountability means there are independent observers of the implementation mechanism that have some capacity to take or call for corrective action if the system is not operating well. Ideally there should be explicit standards against which the accountability agency evaluates the performance of the implementing agency. The accountability agency is in effect a permanent auditor.
In a negative approach to accountability, a government agency assigned the duty of ending malnutrition could be sued or fined in some way for each severely malnourished child that is discovered, thus increasing its incentive to end childhood malnutrition. (A comparable device may be found in the right of California's courts to sue the state government when prisons are overcrowded.) In a more positive approach, designated non-governmental organizations could be given an award or "bounty" of a small sum of money for each malnourished child they find and present for services. This sort of positive approach would engage non-governmental organizations in a partnership with government in support of their larger common purpose.
One particular form of accountability mechanism is giving aggrieved parties themselves or their representatives a procedure for complaining and getting some remedy. Human rights in the law rests on the principle ubi jus ibi remedium where there is a right there must be a remedy. Article 8 of the Universal Declaration of Human Rights asserts that '`everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law." Children's nutrition rights should be articulated in the law, together with a description of the means of legal recourse that are available if even a single individual's rights are violated. If you or your child do not get what you feel you are entitled to under the law, there should be straightforward, simple, accessible, inexpensive, fair, and safe means for pressing your claims. This legal recourse is essential for assuring the government's compliance with the law.
The implementation of the right to adequate nutrition is ultimately the responsibility of government at different levels, but it is also the responsibility of the community at local, national, and international levels. Interested groups both within and outside government can watch the performance of service delivery agencies and call them to account as necessary, even if there is no explicit provision in the law for their playing that role. If the law says that every child has a right to adequate nutrition, anyone who is concerned could help to see that the right is honoured.
The meaning of hard rights and accountability can be understood by recalling the nature of contracts. Suppose you have a contract with me in which I promise to provide goods or services in exchange for a specified amount of money. That contract is not simply an articulation of claims; if it is legally binding it represents enforceable claims. If one of us is not satisfied, there is some third party to whom we can go to press for fulfilment of the contractual obligations. Similarly, a human rights regime can be understood as representing an implicit contract between citizens and government, comparable to that described by Rousseau in The Social Contract of 1762. If that contract is to be taken seriously, there must be some basis on which claims against the government can be enforced.
People in power may resist the articulation of specific rights because rights imply accountability—and political people do not like the idea of being called to account. Nevertheless, the argument is worth pressing. Talk about human rights does not mean much if it does not mean accountability.
Strengthening children's right to adequate nutrition means assuring that children get what they should have. We may press for fuller funding for programmes so that all who meet the eligibility criteria can in fact get the service. But full funding this year does not assure full funding next year. Increased funding for nutrition programmes certainly is worth pursuing, but it leaves children vulnerable to the see-saw of the budgeting process. Funding may be increased for a time, but with the next war or drought or bank crisis, the budgeters are likely to say there is not enough money, and funding for the programmes will be ratcheted down again. Even when funding is adequate there may be nothing to assure that all who are eligible actually receive the services to which they are or should be entitled.
Those who meet the eligibility qualifications should not have to do without the services because someone says there is not enough money. Those denied services for which they are qualified should have clear and readily accessible legal recourse, just as retirees who do not get their social security cheques have a legal basis for demanding what is theirs.
Hard rights provide assured entitlements; services are not provided only "if possible" or "if budgets allow." A right to service implies first call on public resources, so that these are paid for first, before anything else. Those most in need are served first. Increasing funding for service programmes does not in itself alter the balance of power. It is important to assure that those who are eligible for such programmes receive the services as a matter of right. Effectively implemented rights strengthen the weak in the face of the strong and thus benefit them over the long run.
The idea of the right to nutrition has not advanced partly because there is resistance to any suggestion that individuals ought to have the right to demand that they be fed. No one wants the neighbourhood vagrant to have a right of access to his or her personal cupboard. No one is proposing that. The proposal is that carefully designed governmental programmes should be established to assure that no child should have to suffer from serious and sustained malnutrition.
There is resistance to the idea of economic rights of any kind because there is a fear that opening that door would obligate the society to meet unlimited demands for costly services [25]. But first call does not mean an unlimited call. Unquestionably, entitlements must be capped, and they must be well targeted. Well-framed rights are based on clear, detailed criteria regarding who is eligible for services. The law regarding children's right to adequate nutrition should spell out the nature of the service to be provided, and establish clear limits regarding age and other considerations. The criteria can be set to keep the pool of eligible people to a manageable size.
Services to assure adequate nutrition need to be provided only to those who are malnourished or at risk of malnutrition. Using conventional anthropometric indicators, it could be decided that all children who are moderately or severely malnourished would be entitled to specific services. Perhaps the right would apply only to children under some particular age.
The obligation is not to deliver a specific quantum of food or services to all children, but to bring about a particular result. For example, the law might state that the government must provide services, following specified protocols, to any child under 12 years of age who is moderately or severely underweight according to commonly accepted anthropometric measures and standards. The government may find that the most cost-effective means for preventing children from becoming underweight is through establishing a good immunization programme, maintaining effective sanitation systems, and educating mothers about family budgeting and food handling. Governments could achieve the required results in different ways, depending on local circumstances.
In some countries the government's promoting the clear identification of malnourished children might be enough to stimulate increased attention by the community to those children's needs. If children do get more attention from their parents and from their communities simply because they are identified as malnourished, the cost to government for remedial services could be kept very low.
Very poor countries might limit their commitment to providing service only to severely malnourished children under five years of age, while others might assure that services would be provided for both moderately and severely malnourished children up to the age of 16. These details would have to be worked out. The important thing is to establish the principle that vulnerable children are entitled to adequate nutrition as a matter of right. Whatever total amount of service can be provided by government, it is important to assure that it begins with those who have the greatest needs.
The idea of a right to adequate nutrition will not be politically feasible unless the obligation imposed on others by that right is capped, and a good way to cap it is by limiting it to young children who are significantly malnourished.
The work of ending childhood malnutrition worldwide should be focused where the problem is most intense, but it may be more feasible to develop the methods where the problem is moderate and capacities to respond to the problem are large. In this sense, developed countries such as those in Western Europe, Japan, and the United States are well placed to provide leadership in showing how children's right to adequate nutrition could be made into a hard right. Moreover, the call for a United Nations Convention on the Right to Food seems unfeasible so long as it comes from countries that ask the international community to do what they do not do for their own people.
In the United States there will be some ideological resistance to the establishment of any sort of economic right. In the law, however, the distance to be travailed is not great:
The US Supreme Court has ruled that there is no fundamental federal constitutional right to such goods as food, shelter, or education, but the rights to the basics of life are frequently set out in federal or state statutes or state constitutions. For example ... the AFDC statute gives federal matching funds to states "to furnish financial assistance ... to help maintain and strengthen family life." And state welfare statutes frequently require that payments be adequate to meet basic needs. While such requirements are often ignored in practice, their existence in federal and state law demonstrates that many of the principles and rights embedded in article 27(3) [of the Convention on the Rights of the Child], already are to be found in a significant part in US law [26].
No new service programmes need to be developed; if all who were eligible for programmes such as the Special Supplemental Food Programme for Women, Infants, and Children (WIC) and Aid to Families with Dependent Children (AFDC) did in fact participate, hunger could for all practical purposes be ended. The Medford Declaration to End Hunger in the United States asserts that "If we fully utilize existing public programmes in conjunction with the heroic efforts of voluntary food providers in local communities—we can end hunger very soon."
The United States has designed an elaborate nutrition monitoring system [27], and it has many different kinds of nutrition programmes. However, the monitoring system looks in many different directions and serves many different objectives. It looks more at the nutrition patterns of middle-class people than at the malnutrition of marginalized people. If the system cannot (or chooses not to) see the problem of childhood malnutrition it is not going to fix it. While many important elements are present in the United States, they are not integrated into a single system directed toward the goal of ending malnutrition. The point is not simply to monitor, but to firmly link the results of monitoring to goal-directed action. There is not much point to keeping your eyes on the road if your hands are not on the steering wheel. The opposite is true as well.
Existing programmes should be used wherever feasible. In the United States, children's right to adequate nutrition could be established by providing unambiguous, enforceable rights to Medicaid coverage and WIC, AFDC, food stamps, and other established programmes. Other countries could make more systematic use of whatever monitoring and service programmes they already have in place. In poor nations as well as rich nations, if entitlements are capped and existing service programmes are used, recognizing and implementing the right of children to adequate nutrition need not be costly. Indeed, focusing the effort could result in more efficient use of existing programmes .
Many developing countries have nutrition programmes in place which could be adapted to acknowledge children's nutrition rights. In the state of Tamil Nadu in India, for example, the Tamil Nadu Integrated Nutrition Programme (TINP) was introduced in October 1980. It targeted feeding to children at nutritional risk as demonstrated by growth faltering based on weight for age. In July ]982 the government introduced the noon meal programme, covering all children between two and five years of age regardless of their nutritional status. In September 1984 coverage was expanded to include all poor children going to school, up to the age of 15. In the view of Dr. Anuradha Khati Rajivan, Collector in the Pudukkottai District:
In the State of Tamil Nadu, India, it is now possible to think of the feeding programmes for children as entitlement programmes. Here the term entitlement is being used in the sense of a right, something accepted by the society and political leadership and which is unlikely to be questioned for reasons of resource constraints.... Budgetary pressures have not led to cutbacks for the feeding programme.... The noon meal programme now has a first call on the state budget along with food subsidies of the public distribution system and electricity subsidies.
It is still not a hard right because there are no explicit laws assuring children of this entitlement and providing some recourse in case the right is not fulfilled. However, it might not be difficult to take that step. The number of beneficiaries has been increasing steadily, straining the budget. If it becomes necessary to limit the categories of those eligible, it may at the same time be feasible to provide legal assurances for those who are designated as eligible.
Nutrition rights are not promoted as an alternative to other means of alleviating malnutrition. Rather, the rights approach complements and indeed reinforces the necessity for a variety of actions to alleviate malnutrition. Reorganizing existing programmes within a rights framework could make them more streamlined and efficient, and thus result in more cost-effective service.
Task force on children's nutrition rights
In December 1992 in Rome, just prior to the International Conference on Nutrition, a Task Force on Children's Nutrition Rights was established. Functioning under the umbrella of the World Alliance on Nutrition and Human Rights, the task force promotes the strengthening of children's nutrition rights in local, national, and international law. I serve as its coordinator. The task force facilitates and encourages a variety of activities such as research and lobbying on the issue, but its work centres on encouraging the organization of national workshops on the theme. These national workshops are designed to launch locally based long-term campaigns to strengthen children's nutrition rights, giving attention to both their articulation in the law and the effective implementation of that law. Individuals from both governmental and non-governmental organizations are invited to participate.
The workshops use a variation of the "triple-A approach" recommended by UNICEF: The three most important elements of this strategy consist of a continuous and self-refining process of Assessment, Analysis and Action (followed by reassessment, clearer analysis, more focused action, etc.). The first step describes how information should be used. The second provides a guide for discerning what data should be collected. The third suggests the action to be taken [28].
While UNICEF uses this approach to help communities and governments develop overall strategies for dealing with malnutrition, in these workshops the focus is narrowed to the ways in which children's nutrition rights, explicitly stated in the law, can be developed and strengthened.
The assessment of the situation involves describing the current nutrition problems and responses to them, and also requires examination of existing law. Has the nation agreed to any of the major international instruments that affirm rights to adequate nutrition? Are those rights currently articulated in national law? If they are present in the law, are they clear and strong, or vague and abstract? Are children's nutrition rights actually implemented in practice? Are there measures of accountability to assure that food, health, and care programmes reach all who should be reached?
The analysis explores explanations for why the nutrition situation is as it is, and why the law is as it is.
On the basis of these foundations, the workshops then consider action, developing strategies for strengthening children's nutrition rights in the nation. The first stage involves a brainstorming exercise in which many different kinds of approaches are considered, and then these are reviewed and reformulated to shape concrete plans, with specific steps, and clear commitments by different individuals and organizations to follow through.
The first workshop was held in Guatemala in February 1993 and the second in Mexico in May 1993. Others are planned, and discussions are under way with potential organizers elsewhere. Organizers are being asked to invite to their workshops individuals who might arrange similar programmes in other nations in their regions. Hopefully this will lead to an ongoing process of facilitation, networking, and learning. It is too early to show results, but we are confident that this process will in time lead to increasing recognition of children's right to adequate nutrition.