Human Rights, the Right to Food, and WTO Global Constitutionalisation and the Example of Bioenergy On the occasion of the current European and global controversy over the (poverty-and cli-mate) ambivalences of bioenergy with regard to poverty and climate protection, this articleexamines the following questions: (1) Is there a human right to food in public internationallaw? (2) Is it possible to derive human rights as “general principles of law” within the mean-ing of public international law, which are independent from contractual agreement or recog-nition by States?(3) What exactly would such a right to food comprise? (4) What effects dohuman rights have on the interpretation of e.g. WTO law? (5) Is there a constitutional rankrelationship evolving between human rights and public international law which might affectthe interpretation of, e.g., WTO law? (6) How can conflicting considerations be balanced (theneed for which is often overlooked in public international law), if WTO law is interpreted inaccordance with human rights – and what are the general rules for balancing human rights?1A. The current challenge of the right to food by the ambivalent expansion of bioenergy
Climate change and world poverty are perhaps the two biggest political challenges of theearly 21st Century. The search for concepts solving these problems or at least in a “Pareto ef-ficient sense” address one without increasing the other, has led to a controversial debate aboutbioenergy (in the form of electricity, heat, or fuel). By and large, and in addition to attemptsto increase energy efficiency and sufficiency, the use of renewable energy reduces greenhousegas emissions. In the very case of bioenergy, however, the record is ambivalent for severalreasons. Firstly, the cultivation of plants to produce energy (at least in large quantities) is aproblem for the world food situation. Secondly, the production of energy from plants is so farquite inefficient as they carry very limited energy per unit. Taking into account the energy ne-cessary for cultivation, processing, and transportation, the climate record of biofuels is oftenlittle better (if not worse) than fossil fuels.2 Thirdly, an increased use of bioenergy might res-ult in a quantitative exacerbation of the already existing problems of conventional agricul-ture.3
* Felix Ekardt is a professor of environmental law and philosophy of law at the University of Rostock and thefounder of the Research Group Sustainability and Climate Policy (www.sustainability-justice-climate.eu). AnnaHyla is also a member of the research group. She works on a research project on long term aspects of climateprotection for the German Federal Ministry of the Environment. Daniel Kornack played a major role in compil-ing and translating the final version of this text. We also would like to thank him for a number of critical com-ments. Errors are, of course, our own. 1 Even though we support the idea of universal human rights (that are applicable in every State of the world) thisdoes not necessarily mean that they are absolute, i.e. they always prevail without considering conflicting in-terests. There is a basic misunderstanding that accepting this need for balancing is per se a utilitarian approach. This shall be clarified in the course of this article (see especially chapter G). 2 The launch of the second generation of bioenergy plants, in which the entire plant and not just parts of it will beused to generate energy, will probably improve the record. Moreover, one might not forget that the productionand transportation of, for example, oil and gas, also emits greenhouse gases. 3 Cf. for an overview oft he ambivalences of bioenergy and possible solutions Ekardt/ von Bredow, Managingthe Ecological and Social Ambivalences of Bioenergy – Sustainability Criteria versus Extended Carbon Markets,in: Leal (ed.), The Economic, Social, and Political Aspects of Climate Change, 2010 (forthcoming); Ekardt, in:Frenz/ Müggenborg (eds), Kommentar zum Erneuerbare-Energien-Gesetz, 2009, introduction; on sustainabilitycriteria in the EU in Germany see also Ekardt/ Hennig, Zeitschrift für Umweltrecht 2009, p. 543 et seq.
Bio-electricity, -heat, and -fuel form an economic opportunity, particularly for developingcountries. Their use, however, will likely benefit primarily better-off segments of the popula-tion, while the tightening of global food supply would meet the very poorest. This, plus theclimate problem and other environmental issues suggests that we should limit the use ofbioenergy, and that we should favour only uses with a good carbon balance. It was, however,repeatedly shown elsewhere that “sustainability criteria”4 are a currently used, but ultimatelysub-optimal way to pursue these aims. This is due to (a) problems of enforcing the law, and(b) relocation effects (the farmers can simply exchange the land for feed and bioenergyplants). But it is also (c) the impossibility to transform an important factor such as the worldfood situation into a criterion that could be applied for specifically testing the individualbioenergy plant. We would rather recommend a consistent global greenhouse gas reduction,which includes the use of primary energy and the overall land use and connects them with a“complete” global market on carbon emission.5
Nevertheless, some countries in the world have to decide now whether they can ban or other-wise restrict exports or imports with regard to the problem of food security.6 Of course, onecan doubt the suitability of such measures that go even beyond “sustainability criteria”: Afterall, there is not simply a food supply in a single State which allegedly needs protection but, infact, a world food market exists.7 For this reason, the EU decided not to provide a food sus-tainability criterion for bioenergy so far. However, a human right to food could possibly justi-fy restrictions on trade. Therefore, we need a more detailed analysis on this human rightwhose scope of application and content is not yet clear. Such an analysis necessarily includesthe question of balancing with other conflicting rights and the issue of a hierarchy within pub-lic international law. Finally, this leads to the question of how a human right to food could af-fect WTO judgments on trade restrictions.8
B. The Existence of a Right to Food in Public International Law
As a first step, we need to analyse whether in public international law a right to food exists atall.9 Therefore, we consider international treaties, in particular human rights treaties. Theseagreements address a right to food only implicitly. The Universal Declaration of HumanRights (UDHR) is in itself not a treaty under public international law.10 Nevertheless, it will
4 Those are regulatory requirements for bioenergy imports. For example, the EU can ban plants that were cultiv-ated on former rainforest land because of their negative climate balance as a result of forest clearance. 5 Cf. the literature, supra note 3. The specific concepts for a truly global carbon market (differing from the previ-ous reluctant approaches in Kyoto 1997 and Copenhagen 2009) are further developed in Ekardt/ von Hövel, Car-bon & Climate Law Review 2009, p. 102 et seq.; Ekardt/ Exner/ Albrecht, Carbon & Climate Law Review 2009,p. 261 et seq.; Ekardt, Cool Down, 2009, chapter 19-22. 6 On the global factual situation of food security see the Report of the special rapporteur on the Right to Food,Jean Ziegler, to the Human Rights Council (19/01/2007). 7 Likewise, this doubtful suitability can form a problem in the sense of economic basic rights and WTO law re-spectively. 8 The common WTO-test of ecologically-socially motivated trade restrictions related to Articles III, XX GATTmight mainly refer to Ekardt/ Schmeichel, Critical Issues in Environmental Taxation 2009, p. 737 et seq. (dis-cussing climate policy, GATT, and Border Adjustments); Ekardt/ Meyer-Mews/ Schmeichel/ Steffenhagen,Welthandelsrecht und Sozialstaatlichkeit, Böckler-Arbeitspapier No. 170, 2009. 9 Regarding national legislation, see e.g. a case from India: People's Union for Civil Liberties v. Union of India& Ors, In the Supreme Court of India, Civil Original Jurisdiction Writ Petition (Civil) No. 196 of 2001. 10 Stein/ von Buttlar, Völkerrecht, 2005, No. 1007; Heilbronner, in: Graf Vitzthum (ed), Völkerrecht, 2007, thirdsection, No. 223; Kempen/ Hillgruber, Völkerrecht, 2007, chapter 10, No. 21; Herdegen, Völkerrecht, 2008, § 47No. 3.
be dealt with under this section. Later on, we will discuss the question whether such a humanright as the right to food could (also) be derived from the well known but less clear concept of“general principles of law”. I. UN Charter, the ICCPR, and the Right to Development
We start our analysis with a look at the Charter of the United Nations. Under Article 55 a), 56of the UN Charter, all Members “pledge themselves to take joint and separate action in co-op-eration with the United Nations” to “promote . . . higher standards of living” in order to “[cre-ate such] conditions of stability and well-being which are necessary for peaceful and friendlyrelations among nations”. This seems to imply at least a minimum standard which providesbasic needs.11 To improve the standard of living (e.g. in poorer countries) a sufficient accessto adequate food is necessary. Accordingly, the obligation to improve living standards in-cludes an obligation to provide access to food. Even though the UN Charter is legally bindingfor the UN Members12 it does not grant subjective rights to individuals and its provisions aretoo broadly defined13 to derive from them specific duties to act. Rather, the rules can be seenas describing purposes which shall be achieved.14 Thus, the UN does not provide for a right tofood.
Yet, the right to food could represent a subset of the right to development, at least as far asemerging and developing countries are concerned. The right to development is reflected innumerous resolutions since 1977.15 However, there is a debate, whether the right to develop-ment is an individual, collective or even individual-collective right and whether it is a generalprinciple rather than a specific right.16 While some scholars describe the right to developmentas a mandatory part of the existing body of international law and, therefore, as an independentright,17 others see it as a principle with an alterable / ever changing / without a definite con-tent.18 The latter group point to the fact that in contrast to traditional human rights the right todevelopment has multiple dimensions, which refer to the individual or to the collective. Thusthere is an inherent tension between the right to development’s (at least in parts) collectivistidea and the individualistic nature of human rights. Furthermore, resolutions of the UN Gen-eral Assembly are sole recommendations.19 If the source is not binding, it is impossible to de-rive a binding right from it. Therefore, a legally binding right to food cannot be inferred fromthe right to development.
Another possible source for a right to food is Article 6 para. 1 sentence 1 of the InternationalCovenant on Civil and Political Rights (ICCPR) which affirms every human being’s inherentright to life. One could imagine that this right consists not only of a defensive aspect (let live)
11 Cf. Rott, Patentrecht und Sozialpolitik unter dem TRIPS-Abkommen, 2002, p. 88 et seq. 12 Currently 192 States are Members of the United Nations. 13 Vgl. Kempen/ Hillgruber, Völkerrecht, 10. Kap. No. 13, fn. 20; Reimann, Ernährungssicherung im Völker-recht, 2000, p. 140. 14 See the language in Art. 56 UN Charta; cf. also Kempen/ Hillgruber, Völkerrecht, chapter 10, No. 13. 15 Cf. in particular UN Doc. Resolution A/41/128, 4/12/1986 and UN Doc. A/48/935, 06/05/1994, especially No. 3: “Development is a fundamental human right”; see also Odendahl, Das Recht auf Entwicklung, 1996, p. 289. 16 Auprich, Das Recht auf Entwicklung als kollektives Menschenrecht, 2000, p. 212; Odendahl, Recht, p. 193 etseq. 17 Statt vieler Odendahl, Recht, p. 289. 18 Scharpenack, Das Recht auf Entwicklung, 1996, p. 277; to be distinguished thereof is the opinion which char-acterises the right to development as a „right in progress“ („Recht im Werden“), which is in a process of “norm-ative substantiation” („normativer Verdichtung“); cf. Auprich, Recht, p. 216. 19 See Odendahl, Recht, p. 279.
but also of an active element (secure a living). Such an understanding would necessarily in-clude the right to food. However, there is a structural limit to this interpretation: Article 6,paragraph 1, sentence 3 ICCPR stipulates that “[n]o one shall be arbitrarily deprived of hislife.” The other paragraphs of Article 6 ICCPR are concerned with limitations on capital pun-ishment and genocide, both acts of active killing. The similar provision in Article 2 paragraph1 ECHR stipulates that [e]veryone’s right to life shall be protected by law. The further quali-fication in Article 2, paragraph 1, sentence 2 and paragraph 2 ECHR clarifies, however, thatthe right to life protects only against intentional killing (save in the exemptions made in Art-icle 2 ECHR, i.e. a court sentence or the necessary use of force under certain circumstances). This meaning of Article 2 ECHR together with the context in which Article 6 ICCPR has tobe read, makes it more plausible not to read Article 6 paragraph 1 sentence 1 ICCPR inde-pendently of sentences 2 and 3 and the following paragraphs. Therefore, the structural inter-pretation has implications for the literal interpretation and a broad reading of the notion of"life" in this case would be doubtful. Accordingly, a right to food cannot be inferred from Art-icle 6 paragraph 1 sentence 1 ICCPR either.
Yet the right to food could be linked to other classical human rights in the ICCPR. For ex-ample Article 9, paragraph 1, sentence 1 ICCPR guarantees personal liberty and security ofperson. Freedom, as commonly understood, means the absence of coercion, in particular, theabsence of physical coercion. A broad understanding of physical coercion could consider notonly external force but also internal factors, e.g. sickness due to insufficient or inadequatefood. Such a wide interpretation, as we have seen with regard to Article 6 paragraph 1 sen-tence 1 ICCPR might encounter structural concerns supporting a narrow approach instead. First of all, the right to personal liberty is granted together with the right to security of per-son. The latter, however, means the security of every individual to be protected from govern-ment interference. This is illustrated by Article 6 paragraph 1 sentence 2 ICCPR which pro-hibits arbitrary arrest or detention. This somehow suggests to interpret personal liberty not in-dependent of but in connection with security. The conjunction “and” in this sentence makessuch an understanding even more plausible. A broad definition, as described above, wouldtherefore not comply with the spirit and purpose of the norm. Thus, Article 9, paragraph 1sentence 1 ICCPR, too, probably does not grant a right to food. It could only be asked wheth-er the notion of "personal freedom" can be interpreted in the sense of a general freedom of ac-tion, and whether it would include the basic requirements necessary to exercise this right, e.g. food. We leave this question unanswered here. We will indirectly come back to it in part Cwhen we take a closer look at universal freedom and its basic conditions under the notion of"general principles of law". II. Article 25 UDHR
Another source for a right to food could be the Universal Declaration of Human Rights. Art-icle 25 UDHR states that “[e]veryone has the right to a standard of living adequate for thehealth and well-being of himself and of his family, including food . . . ." As such, Article 25UDHR explicitly grants a right to food. It is, however, doubtful that this right is legally bind-ing.
On 10 December 1948, the UDHR was adopted by the UN General Assembly as a resolution. It contains not only civil and political rights but also social rights, which are founded on hu-
man dignity.20 Resolutions, unlike decisions of the Security Council21, are non-binding recom-mendations22 which promulgate general objectives.23 This also follows from the wording ofresolution 2200 (XXI) of the General Assembly. The resolution’s Article 1 shows that theUDHR was only adopted by the General Assembly, thus not being legally binding.24 Never-theless, there is a wide discussion in the literature on the binding effect of the UDHR, with asignificantly negative trend, though.25 The minority position is based on the fact that theUDHR is referred to in numerous declarations and decisions26, that it is recognised as defini-tion and interpretation of the rights in Articles 55, 56 UN Charter, which shall be promoted bythe UN27, and that it is mentioned for example in the preamble to the ECHR. The GermanFederal Court of Justice has also referred to the UDHR in its judgment concerning the hom-icide of a refuge from the former German Democratic Republic by two GDR soldiers at theinner-German border. 28 It stated that “even if the binding effect of the UDHR is not clear, itcertainly has a high degree of legal significance, since it expresses the will of the internationallegal community to implement human rights and the fairly accurate content of these humanrights as a legal conviction common to all nations and founded on the value and dignity ofmen.”29 “Common convictions” might, of course, more adequately be expressed by othersources of international law than a UN resolution (like the UDHR), namely by internationalcustoms and general principles of (international) law. We will return to these elements infra.
In addition, it should be noted that the argument regarding the international community issketchy, since initially only 48 States had adopted the UDHR30 and since the rights formulatedin the UDHR have been merged almost verbatim into binding international treaty law in theInternational Covenants of 1966, the International Covenant on Civil and Political Rights (IC-CPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR),which even concretise the UDHR.31 This suggests applying the respective treaty as lex spe-cialis instead of the lex generalis UDHR. This would also comply more adequately with thenature of the resolution which has been selected for the UDHR. Accordingly, even thoughArticle 25 UDHR does contain a right to food, it is not legally binding.
20 See the preamble of the UDHR. 21 A resolution of the General Assembly has to be distinguished from decisions of the Security Council, cf. Art-icle 25 UN-Charta, which mentions decisions in the context of the Security Council. In addition, recommenda-tions are possible; cf. Article 36 UN-Charta. 22 This already follows from the fact that, according to Article 13 paragraph 1 UN-Charta, the General Assemblymerely makes recommendations; cf. Stein/ von Buttlar, Völkerrecht, No. 1007; Herdegen, Völkerrecht, § 47 No. 3; Kempen/ Hillgruber, Völkerrecht, chapter 10, No. 20; according to Articles 10, 12 UN-Charta decisions of theSecurity Council are prior to resolutions of the General Assembly. Unlike recommendations, decisions of the Se-curity Council are legally binding. 23 Resolution 2200 (XXI); Kempen/ Hillgruber, Völkerrecht, chapter 10, No. 20. 24 Heilbronner, in: Graf Vitzthum, Völkerrecht, third section, No. 223; German Federal Constitutional Court,Vol. 41, p. 88 (106); German Federal Criminal Court, Vol. 40, p. 241 (246); Rott, Patentrecht, p. 89. 25 This discussion ranges from mere political sentences to jus cogens for fundamental – or even all – humanrights; cf. Heilbronner, in: Graf Vitzthum, Völkerrecht, No. 236; Rott, Patentrecht, p. 90. 26 Cf. German Federal Constitutional Court, Vol. 31, p. 58 (68) as well as the decisions in the cases of TexacoOverseas Petroleum Company and California Asiatic Oil Company vs. The Government of the Libyan Arab Re-public, ILR 53, 420 (491); Libyan American Oil Company vs. The Government of the Libyan Arab Republic,ILR 62, 140 (189). 27 Cf. Heilbronner, in: Graf Vitzthum, Völkerrecht, third section, No. 223. 28 German Federal Criminal Court, Vol. 40, p. 241. 29 German Federal Criminal Court, Vol. 40, p. 241 (247). 30 Kempen/ Hillgruber, Völkerrecht, chapter 10, No. 20. By now, 162 States have signed and ratified Pact on Ci-cil Rights and 159 States the Pact on social rights. 31 Vierdag, NYIL 1978, p. 69 (82); Rott, Patentrecht, p. 93; see also Stein/ von Buttlar, Völkerrecht, No. 1008. III.Article 11 paragraph 1 sentence 1 ICESCR
This immediately takes us to Article 11 paragraph 1 sentence 1 ICESCR which explicitlygrants a right to food.32 The language of this provision is similar to Article 25 UDHR: “TheStates Parties . . . recognize the right of everyone to an adequate standard of living for himselfand his family, including adequate food.” Unlike the UDHR, the ICESCR does represent in-ternational treaty law and is thus legally binding.33 It was the Parties’ aim to transfer the con-tent of the UDHR, merely programmatic in nature, into binding treaty law. For this purpose acommittee was created that divided the rights included in the UDHR into two covenants, theICCPR and the ICESCR. Both treaties came into force in 1976.34 Therefore, in principle, theICESCR is legally binding on the States which have signed (ratified?) it.35
However, there is a controversy in the literature as to the binding effect of rights under theICESCR.36 It is essentially based on the commonly perceived difference between rights underthe ICCPR and those under the ICESCR. The first alleged difference is the nature of the re-spective rights. The ICESCR, in terms of the common international law terminology, containsmainly “second generation rights”.37 Unlike “first-generation human rights” they are not clas-sical defensive rights (Abwehrrechte), i.e. rights against State interference, but rather protec-tion rights (Schutzrechte) and beneficial rights (Leistungsrechte), i.e. rights to demand Stateinterference.38 It is argued that social human rights were linked to a State’s availability of re-sources and depended on the respective State’s changing conditions.39 Moreover, their aimwas to gradually achieve the standards aspired in the ICESCR. 36 For Article 2 paragraph 1ICESCR requires that each State “undertakes to take steps, individually and through interna-tional assistance and co-operation, especially economic and technical, to the maximum of itsavailable resources, with a view to achieving progressively the full realization of the rights re-cognized in the present Covenant by all appropriate means, including particularly the adop-tion of legislative measures.” This formulation seems to indicate an undefined commitment totake certain actions subject to financial ability.40 “Second generation human rights” were mere
32 Scholars often distinguish the right to food in Article 11 paragraph 1 sentence 1 ICESCR from the right to beprotected from hunger/ starvation in Article 11 paragraph 2 ICESCR. We will only analyse Article 11 paragraph1 sentence 1 ICESCR because we want to show that a right to food already exists in this provision. Article 11paragraph 2 with its minimum level is already included in Article 11 paragraph 1 sentence 1; see also Engbruch,Das Menschenrecht auf einen angemessenen Lebensstandard. Ernährung, Wasser, Bekleidung, Unterbringungund Energie, 2008. 33 Herdegen, Völkerrecht, § 48 No. 1, 6; Kempen/ Hillgruber, Völkerrecht, chapter 10, No. 21; Stein/ vonButtlar, Völkerrecht, No. 1008; Reimann, Ernährungssicherung, p. 140; Wimalasena, KJ 2008, p. 2 (4). 34 McCorquodale/ Dixon, Cases and Materials on International Law, 2003, p. 194; Kempen/ Hillgruber, Völker-recht, chapter 10, No. 21. 35 Vgl. Rott, Patentrecht, p. 94. 36 Vierdag, NYIL 1978, p. 69 et seq.; Rott, Patentrecht, p. 93; Wimalasena, Kritische Justiz 2008, p. 2 (4); Eide/Kracht, Right, Vol. 1, chapter 4, p. 3; Bleckmann, Völkerrecht, 2001, No. 982; Reimann, Ernährungssicherung,p. 15; see also Fritzsche, Menschenrechte, 2004, p. 92. 37 Stein/ von Buttlar, Völkerrecht, No. 1002, 1014. 38 Stein/ von Buttlar, Völkerrecht, No. 1002; Reimann, Ernährungssicherung, p. 160; Auprich, Recht, p. 38; Rott,Patentrecht, p. 93. Some authors have also identified a third generation which (cumulatively or alternatively) in-cludes environmental or collective rights. However, this has not yet reached any practical relevance; cf. Don-nelly, in: Brölmann/ Lefeber/ Ziek (ed), Peoples and Minorities in International Law, 1993, p. 119 et seq. 39 Wimalasena, KJ 2008, 2 (9-10); Heilbronner, in: Graf Vitzthum, Völkerrecht, 3. Abschnitt, No. 226; Vierdag,NYIL 1978, p. 69 (81-82). 40 Heilbronner, in: Graf Vitzthum, Völkerrecht, 3. Abschnitt, No. 226; Dommon, in: Abott/ Foster, InternationalTrade and Human Rights, The WT Forum, Vol. 5, p. 124; Eide/ Kracht, Right, Vol. 1, chapter 4.
political sentences.41 Accordingly, many authors see a difference between “absolute” defens-ive rights and "relative" protection and benefit rights.42 Where a State’s duties to protect arerecognized in some cases, they are then often seen as subordinate to defensive rights.43 Thecommon notion of “obligations” rather than “rights” also shows that the subjective quality ofsuch rules is doubted.44
However, all these arguments can be convincingly refuted. First, it should be noted that anysubstantive openness of Article 11 paragraph 1 sentence 1 ICESCR is being addressed by theCommittee on Economic, Social and Cultural Rights which uses General Comments to con-cretize any obligation or right.45 But most notably the basic theses are not convincing: classic-al libertarian rights are not more certain than as social rights and they are not “more absolute”in the sense of “more resistant to balancing” than social rights. Specifically:
1. The human rights liberties should unambiguously be interpreted to include the basic
physical preconditions of freedom - which implies a right to food. For without such amere subsistence and without health and life there is no freedom. 46 Hence, the right tofood can be inferred from the very general concept of freedom as described in the IC-CPR. German case-law47 and scholarship48 instead often refer to human dignity or thewelfare principle, since individuals without food or subsistence degenerate into a mereobject. 49 However, the classification of human dignity as a subjective right is doubt-ful50, in case of the welfare state principle even positively impossible.51 Therefore, theexistence of a subjective right to subsistence as argued by the majority in the Germanjurisprudence remains doubtful.52 Another argument against an inference from human
41 Wimalasena, Kritische Justiz 2008, p. 2 (8); Vierdag, NYIL 1978, p. 69 (83). 42 Bleckmann, Völkerrecht, No. 983; Wimalasena, Kritische Justiz 2008, p. 2 (8); Vierdag, NYIL 1978, p. 69(80); Reimann, Existenzsicherung, p. 157; Pieroth/ Schlink, Grundrechte. Staatsrecht II, 22 ed. 2006, No. 58;Kannengießer, in: Schmidt-Bleibtreu/ Klein (ed), Grundgesetz-Kommentar, 9 ed. 1999, Introduction before Art. 1 No. 5; von Münch, in: von Münch/ Kunig, Grundgesetz-Kommentar, Introduction before Art. 1-19 No. 16;Sachs, in: Sachs, Grundgesetz-Kommentar, Introduction before Art. 1 No. 26; see also German Federal Constitu-tional Court, Vol. 7, p. 198 (204). 43 For the conventional position cf. Jarass, in: Jarass/ Pieroth (ed), Grundgesetz-Kommentar, 9 ed. 2007, Intro-duction before Art. 1 No. 6; Kannengießer, in: Schmidt-Bleibtreu/ Klein, Grundgesetz-Kommentar, Introductionbefore Art. 1 No. 5, 2c. 44 See, e.g., German Federal Constitutional Court, Vol. 39, p. 1; Vol. 88, p. 203; Vol. 49, p. 89 (141); Vol. 53, p. 30 (57); this problem is overlooked by Couzinet, Deutsches Verwaltungsblatt 2008, p. 760 et seq., as well as insome of the articles cited by her; critical Vosgerau, Archiv des öffentlichen Rechts 2008, p. 346 et seq. andSchwabe, Juristenzeitung 2007, p. 134 et seq. 45 According to Riehle, ZFSH/ SGB 2008, p. 643 (644), the effect of General Comments can be compared to na-tional judgements. See chapter E. for further details. 46 Therefore, the tendency in international law towards „social“ fundamental rights with regard to the various as-pects of subsistence has a theoretical foundation, too. This “constitution of international law” can be derivedeven without reference to the International Covenant on Economic, Social, and Cultural Rights through the “gen-eral principles of law” (cf. Article 38 ICJ Statute); cf. Ekardt/ Meyer-Mews/ Schmeichel/ Steffenhagen,Welthandelsrecht, p. 42 et seq. 47 German Federal Constitutional Court, Vol. 40, p. 121 (133); Vol. 45, p. 187 (228); Vol. 48, p. 346 (361); Ger-man Federal Administrative Court, Vol. 1, p. 159 (161). 48 Kunig, in: von Münch/ Kunig (ed), Grundgesetz-Kommentar, Bd. I, 5 ed. 2000, Art. 1 No. 30, 36; Schmidt-Liebig, Betriebsberater 1992, p. 107 (107 and 115); Wallerath, Juristenzeitung 2008, p. 157 (159); Starck, Jur-istenzeitung 1981, p. 457 (459); Sartorius, Das Existenzminimum im Recht, 2000, p. 15. 49 German Federal Administrative Court, Vol. 25, p. 23 (27); Dürig, Grundgesetz, 2003, No. 43. The „object for-mula“ was introduced in German case law in German Federal Administrative Court, Vol. 1, 159 (161); later onGerman Federal Constitutional Court, Vol. 9, p. 89 (95); Vol. 27, p. 1 (6); Vol 50, p. 166 (175); Böckenförde,Juristenzeitung 2003, p. 809 et seq. 50 Wallerath, Juristenzeitung 2008, p. 157 (162); Schulte/ Trenk-Hinterberger, Sozialhilfe, 2 ed. 1986, p. 4. 51 See only Jarass, in: Jarass/ Pieroth, Grundgesetz-Kommentar, Art. 20 No. 103. 52 Bachof, Veröffentlichungen der Vereinigung der deutschen Staatsrechtslehrer …., 37 et seq. and Jarass, in:
dignity is that dignity53 according to provisions like Article 1, paragraph 2 German Ba-sic Law or the preambles of many human rights catalogues is the reason for humanrights and liberties and, therefore, provides for what can be called the general idea ofliberties and human rights: the respect for the autonomy of the individual.54 In con-trast, the prohibition to treat a human being merely as an object, often quoted as thecore of human dignity, appears as unfounded, even in the word “dignity” untraceablepostulate – notwithstanding the additional inherent question when someone is “madeinto a mere object”. Thus, if human dignity is more of the common basic reason forhuman rights, human dignity is not only not a basic right but also rather not independ-ently applicable to specific cases.55 This means: Elementary preconditions for freedom(such as food security, drinking water, a stable global climate, etc.) are necessarilycontained in the notion of freedom. Thus, the right to food can at least not be subor-dinated to the “traditional freedom”.
2. Every kind of human right needs to be balanced, not only “second generation rights”.
That is why constitutions and human rights catalogues always subject even classicaldefensive rights to restrictionability. Moreover, the general need to balance alreadyfollows from the multipolarity of human rights, i.e. their nature of being not only de-fensive rights:
3. The content of the basic principle of freedom, as embodied in basic rights, is the pro-
tection of freedom where there is danger. Because basic rights in their function of fun-damental rights shall give specific protection to typical dangers for freedom. Suchthreats do not only evolve from the State but also from private actors (and from mar-ket activities created by the latter, such as bioenergy). But this implies that freedommust always include a right to demand (state) protection against fellow citizens andnot only in exceptional circumstances. Such protection of individual freedom and itspreconditions by the State against fellow citizens could for example target environ-mental destruction – and it would not be subordinate to classical defensive rights.56This “protection” may also consist in a benefit, such as cash to ensure minimum levelof food.
The third point can be called “multipolarity of freedom”. It follows, as we have just shown,from the very idea of freedom itself, which is at the centre of liberal-democratic constitu-tions.55 This alone shows that (a) protection rights exist, that (b) they are equal to defensiverights, and that (c) the notion of protection rights is preferable to protection duties as other-wise, the equality would not be recognized. There are further reasons:
Multipolarity also becomes visible in rules such as Article 2 paragraph 1 German Basic Law
Jarass/ Pieroth (ed), Grundgesetz-Kommentar, 9 ed. 2007, Art. 2 No. 69 [trying to find such a right based on thegeneral notion of freedom or on the right to life]; similar Brockmeyer, in: Schmid-Bleibtreu/ Klein, Grundge-setz-Kommentar, Art. 20 No. 52. 53 On the following see Ekardt/ Kornack, Kritische Vierteljahreszeitschrift für Gesetzgebung und Rechtswis-senschaft 2006, p. 381 et seq.; Ekardt, Theorie der Nachhaltigkeit: Rechtliche, ethische and politische Zugänge,2009, § 5; Ekardt, Die Verwaltung 2010, Vol. 1. 54 With a similar notion but a different approach also Dreier, in: Dreier (ed), Grundgesetz-Kommentar, Bd. I, 2ed. 2004, Art. 1 Abs. 1 No. 44. 55 See also Enders, Die Menschenwürde in der Verfassungsordnung, 1997. 56 The issue here is not, whether citizens can sue each other with regard to their liberties or human rights. Thiswould render a trade-off very difficult since a court is not the appropriate authority to perform the necessary bal-ance between a large number of rights or liberties involved. Such balancing is primarily in the competence andan obligation of the legislature, since this is the best way to protect freedom/ liberty.
(Grundgesetz/ GG), which stipulates that “everyone has the right to self-fulfilment insofar ashe does not infringe the rights of others and does not violate the constitutional order or themoral law,” or Article 29 No. 2 UDHR, which gives everyone the right to „exercise . . . hisrights and freedoms . . . subject only to such limitations as are determined by law solely forthe purpose of securing due recognition and respect for the rights and freedoms of others andof meeting the just requirements of morality, public order and the general welfare in a demo-cratic society.” Those rules specifically state that the general freedom to act in accordancewith self-determination may be limited by the rights of others. Thus, at least these two rulesassume that also human rights or basic rights may conflict with each other directly. Anotherargument for multipolarity is apparent from the wording of Article 1 paragraph 1 sentence 2GG and the preamble to the UDHR, according to which public authorities have to “respect”and “protect” human dignity and thus liberties (which exist under Article 1 paragraph 2 GG(“therefore”) for dignity's sake and, hence, have to be interpreted in accordance with its struc-ture). It is this double concept of respect and protection of human dignity (and thus liberties)that illustrates that freedom can be affected from different directions. Yet linguistically, theterm 'to protect' would not make sense if it meant only that the State cannot exercise coercionagainst the citizens - the government could simply abstain from any action). Hence, “to se-cure” must rather mean that the addressee (the State) has to protect someone against others(the fellow citizens).
However, there is no rule in the ICESCR or the ECHR that shows the same aspects of protec-tion and respect the German GG does. That in the ICESCR human rights are also inferredfrom human dignity is illustrated in the preamble. It mentions duties towards other human be-ings. This means that there must be some mechanism that was created to fulfil these obliga-tions because otherwise they contained meaningless commitments. Therefore it might be as-sumed, that when someone fails to comply with these duties towards his fellow citizens, theState must interfere with that fellow-injurious behaviour. General Comment No. 12 to theICESCR confirms that the right to food includes three types of obligations, namely “the oblig-ations to respect, to protect and to fulfil.”57 It follows that no one shall be deprived of theirlivelihood (right to respect), that the State shall actively protect its citizens from a withdrawalof their livelihood (right to protect) and that citizens in need have a minimum right to Stateassistance in their efforts to feed themselves (right to fulfil).58 The parallel listing of thesethree factors is consistent with the aforementioned hypothesis that inferred from the right offood equal dimensions: a defensive, a protective and a beneficial one.
Meanwhile, the rights of the ICCPR can be enforced by other States or even by individuals (ifthe respective State is a Party to the Optional Protocol to the ICCPR).59 Even though such anenforcement mechanism does not yet exist in the ICESCR60 (so far as a template has not beenadopted), this does not contradict the arguments for multipolarity just presented. Moreover,ICCPR decisions are not legally binding. 61 Furthermore, it does not seem clear that all rightsin the ICESCR are merely second generation human rights. Even the majority opinion con-cedes that some rights under the ICCPR are of a two-dimensional nature and that rights under
57 General Comment 12, No. 15. 58 General Comment 12, No. 15; Reimann, Ernährungssicherung, p. 175; Breining-Kaufmann, Right to Food andTrade in Agriculture, in: Cottier/ Paulwelyn/ Bonanomi (ed), Human Rights and International Trade, 2005,chapter 6, p. 363-364. 59 See Heilbronner, in: Graf Vitzthum, Völkerrecht, third section, No. 228. 60 The draft introducing a similar mechanism is not very likely to be adopted. 61 Cf. Stein/ von Buttlar, Völkerrecht, No. 1013 and 1015.
the ICESCR can also be defensive rights. Hence, it cannot be assumed that the right to food isnot sufficiently certain or too susceptible to and indeterminate in balancing or lacks the neces-sary binding effect and enforceability to be valid. C. “General principles of law” as a source of human rights - including the right to food?
There might be an additional source of the right to food that also targets the presented objec-tions.62 Instead of relying on international treaties one could refer to the general principles oflaw which constitute a third source of international law in addition to international treaties andcustoms.63 Additionally, we might ask, whether such general principles of law within themeaning of Article 53 WVRK can be regarded as jus cogens. This might result in some kindof “international constitutional law” giving an increased weight to the right to food.64 In addi-tion, the right to food would be valid even towards States which have not ratified theICESCR.
So, could there be general principles of international law granting minimum social standards(in terms of a right to food) as human rights65 independent of State (“multilateral”) approval?66First, we need to consider what general principles of law truly are? Linguistically, it soundslike a “law behind the law”, a higher system of justice which determines certain basic ideasregardless of whether the particular political and state system is willing to respect them ornot. The relation of legal principles to some kind of system of the law of reason (Vernun-ftrecht)67, however, remains unclear in the tradition international law debate. Meanwhile, thenotion of general principles of law could import the concept of the general theory of justiceinto the law, even where the international treaty law does not provide comprehensive rules. Ina modern Kantian, liberal-democratic theory of law or justice this would be represented byhuman dignity, impartiality, freedom, protection of (especially elementary) conditions of free-dom as well as the expansion of freedom in an inter-generational and global dimension. In ef-fect, this could lead to a catalogue of fundamental rights like the European Charta of Funda-mental Rights or as included in the German GG or in treaties of international law. 68 This
62 On the following see Ekardt/ Meyer-Mews/ Schmeichel/ Steffenhagen, Welthandelsrecht, chapter 4.3.3; seealso (partially) Herrlich, Internationale Menschenrechte als Korrektiv des Handelsrechts, 2005; Faden, Men-schenrechte und Handelsregeln, 2007, p. 46 et seq. 63 Mentioned in Article 38 ICJ Statute. 64 See Chapter D. 65 Somehow abrupt Rott, Patentrecht, p. 103-104. 66 Cf. Voigt, Sustainable Development as a Principle of International Law, 2009; Maurmann, Rechtsgrundsätzeim Völkerrecht – am Beispiel des Vorsorgeprinzips, 2008; more reluctant Durner, Common Goods, 2001, p. 21et seq., who seems to understand the principles as a mere systematic compendium of contents which are doubt-lessly valid international law without being a separate source of law. Schollendorf, Die Auslegung völkerrecht-licher Verträge in der Spruchpraxis des Appellate Body der WTO, 2005, p. 353 et seq., shows that the WTO caselaw (e.g. with regard to precaution or sustainability) only seemingly makes reference to general principles of in-ternational law and in fact refers to international environmental treaties and general practices; this is not suffi-ciently clear in Thiedemann, WTO and Umwelt, 2005, p. 31 et seq. Regarding the principle of co-operation,however, which is based on Article XX GATT the case law seems to assume a general principle of internationallaw – which is not without problem as will immediately be shown. 67 Today the notion of "natural law" is no longer meaningful as it misleadingly suggests that it were possible toderive from the empirical „nature of men“ (however it should be determined) something of normative import-ance. This, of course, would mean to (im Wege eines Sein-Sollen-Fehlschlusses). Therefore, the Kantian tradi-tion uses the notion of the law of reason or philosophy of justice behind the law; cf. Ekardt, Theorie, § 1. Cf., also for the specific ratio, Ekardt, Theorie, § 3. 68 Id.
would certainly be a universalist - and globalist69 - law of reason.
However, commonly general principles of law are rather seen as concepts which are (purelyfactually) recognised by the States – or a “representative” selection of States – establishedprinciples. Therefore, the starting point to substantiate these principles is usually not interna-tional law itself but the national law of these States.70 Should we now count how many Statesexplicitly recognized a right to food71 - or maybe only implicitly as Germany arguablydoes? Should the “representative” selection of States be based on the nationality of the ICJjudges? Then, of course, we would face the question whether the term “recognized” “generalprinciples of law” in Article 38 of the ICJ Statute is consistent at all. For what distinguishesthe law of reason or “nature” and its general principles (at least since Thomas Aquinas) is thefact that its ideas are independent of a de facto positivist recognition by any authority or ma-jority. Although the theoretical basis may have slightly changed due to the shift from the lawof nature to the law of reason (and perhaps now from the old Kantian to a modern-Kantian ra-tional discourse-founded law), yet this very result has remained as such. The controversy canbe solved by considering the words “recognized by civilized nations“.They indicate that theexistence of a general principle does not depend on “every nation’s” factual recognition butrather on the perspective of civilization as such. If the notion of “civilized nations” is sup-posed to have any meaningful content, it must refer to what man rightfully has to recognise; itdescribes acceptability not factual acceptance. Consequently, the term “civilized nations” informer times was related to western („law of reason“) democracies and their legal philosophy.
The biggest problem of the previously accepted opinion on the general principles of law,however, is the following: If legal principles (just to mention, this is true for customary law aswell) shall have a true meaning in addition to international treaty law, even representatives ofthe traditional conception of international law (despite their reference to the States) feel theneed to postulate principles of law which not all States factually recognise or practice. This isillustrated in key words such as “comparative review” and “representative selection of States”which are often used in the determination of such “legal principles”. The crucial issue is,however, (a) how to select those States whose legal state of mind is supposed to be “repres-entative” and should therefore prove the recognition of certain principles (What would be rep-resentative? Which countries are representative for instance for Africa / Europe / South Amer-ica?), (b) how in doing this total arbitrariness of the legal user “to get to the desired result"
69 Universalist means valid in every State/ system of law. Globalist means also valid in a cross-border situation(e.g. against foreign powers or in the framework of international organisations). This difference is often over-looked in the international law discourse (as well as in the philosophical global justice discourse). 70 Cf. Verdross/ Simma, Völkerrecht, p. 384; Weiss, Archiv des Völkerrechts 2001, 398 (408); Heintschel vonHeinegg, in: Ipsen, Völkerrecht, 2004, p. 231, No. 3; Kimminich/ Hobe, Einführung in das Völkerrecht, 2004, p. 183. 71 A FAO report analysing which States grant a right to food shows that only seven States have expressly estab-lished the right to food under this heading in their constitutions. Those are the Democratic Republic of theKongo (cf. Article 34 of its constitution), Ecuador (Article 19), Haiti (Article 22), Nicaragua (Article 63), SouthAfrica (Article 27), Uganda (Article 14) and Ukraine (Article 48). Bangladesh (Article 15), Ethiopia (Article90), Guatemala (art. 99), India (Article 47), Iran (Article 3 & 43), Malawi (Article 13), Nigeria (Article16); Pakistan (Article 38), Seychelles (Preamble), and Sri Lanka (Article 27) have made it a national object-ive. Brazil (Article 227), Guatemala (Article 51), Paraguay (Article 53), Peru (Article 6), and South Africa (Art-icle 28) have also established a right of children to adequate food; cf. FAO, Implementation of the right to foodin national legislation, http://www.fao.org/docrep/w9990e/w9990e11.htm#TopOfPage, No. 13. The Conventionon the Rights of the Child (Article 24) also mentions nutrition of children within the framework of internationalpublic law. Regarding national legislation, see also a case from India: People's Union for Civil Liberties v. Unionof India & Ors, In the Supreme Court of India, Civil Original Jurisdiction Writ Petition (Civil) No. 196 of 2001.
can be avoided, and (c) how the whole idea of States being bound against their will72 goes inline with the traditional idea of the sovereignty of States, which is the ratio for the commit-ment to the “factual recognition of principles by the States”.73
This is even more problematic since one may well verify whether a legal principle X is actu-ally recognized in “all” systems of law (or by all States in international law respectively). Sometimes referring to a selection of "representative" States despite this (foregone) possibilitymight even allow postulating a legal principle which is clearly not recognised in a majority ofStates. Hence, the traditional view of “general principles of international law” gives leewayfor international law practitioners, which were hard to reconcile with the concepts of legalcertainty, balance of power, a clear division of competences and so on.
We can still go further: International law in its previous interpretation is already quite subject-ivist - in other terms, at the discretion of sovereign States, which may more or less arbitrarilyform any contract. Both, from the point of view of the law of reason as well as the needs for amore rational and objective global legal system in this age of globalization, this is an instance,that must be overcome in the medium term.74 The traditional view of general principles of in-ternational law, however, leads to a paradox which was already indicated above: On the onehand, the position of sovereign nation States is weakened, since they are confronted againsttheir will with a somehow more globalist idea of law. On the other hand, the arbitrariness ofnation States is not answered with an objectivist, formal application of law at the global level,but with an element of arbitrariness in favour of legal users. This arbitrariness does not onlyconcern the application of the law but also provides a further element of voluntarism to rule-making, since the legal principles here are methodologically unclear and slightly arbitrarily“set” and then “applied”. Practitioners (who ultimately also make law) may now (whethercommitted in good faith whatever defined) avow themselves to legal principles derived fromthe desired outcome and therefore may instead of a devotion to the rational application of thelaw be carried away rather emotionally. As a result, the traditional understanding of generalprinciples of international law does not lead to a more formalised, rationalised and objectifiedinternational legal order (as is desirable), but perhaps even to a new stealth mechanism behindwhich hides, on closer inspection, not the rational idea of justice, but the trimmed voluntarist“Gorgon's power” (Hans Kelsen). The only difference to some idea of “total state sover-eignty” is that now the power is vested in individual practitioners, such as the WTO courtsand not so much in nation States.75
72 That is what it is all about, otherwise, a State X, e.g. in case of a dispute before the WTO dispute settlementbodies, would not deny the validity of a legal principle Y. 73 The same problems present in the traditional reading of the general principles of law arise incidentally, if oneassumes, that the "high rate of ratification of human rights treaties" (that is the ratification by many States) trans-fer the treaties per se into general principles of law. After all, this would be quite inconsistent as well. 74 For the possibility to rationally justify a universalist and globalist law, see Alexy, Recht, Vernunft, Diskurs,1995, p. 127 et seq. (on universalism); Ekardt, Wird die Demokratie ungerecht?, 2007, chapters III and IV;Ekardt, Theorie, §§ 3, 4, 5, 7 (on universalism and globalism); similar but with important differences Habermas,Faktizität und Geltung, 1992, p. 109 et seq.; Rawls, A Theory of Justice, 1971. 75 By no means we want to support the radical positivist Kelsean legal concept. We rather propose a universalistand globalist, argumentatively renewed rationalist foundation (also) of (international) law. Nor is it our aim tofoster the (unreachable) goal to make courts and administrations absolutely pure “users” of the law. For lawmak-ing must be (and it is in fact) a process based on the separation of powers, see Ekardt/ Beckmann, Verwaltung-sarchiv 2008, 241 ff - The debate about the issue of principles of law has so far been little clear. This might bedue to a vague use of the notion of justice. Instead of simply defining it as the overarching "correctness of the so-cial order" in a very broad sense it is often substantiated with a few among the many normative questions of life. See, e.g. Maurmann, Rechtsgrundsätze, p. 12 (fn. 46) and 58. At the same time, it is overlooked that the law isjust a special case of the theory of justice/ ethics/ morality – with a unique concreteness and enforcement through
The idea that what is “generally” recognized can be determined (using rather arbitrary meth-odology) by single aspects ("representative comparative law"), is also linguistically at oddswith the term “general” which means “regarding all” – and only “general” principles of laware mentioned in Article 38 ICJ Statute as a source of law.76 This results in the same frictionsas the use of the terms “common welfare”, “common good” or “general public interest” in thelaw, which in turn is susceptible to disguising that the intended aim does not always serve“all”.77
Hence, the idea of general principles of law is doomed to remain out of place in the prevalent,nation-centred international law. It will always be limited to trivial principles which could aswell be classified as international customs.78 Accordingly, rejecting the existing legal practicewould yield the opposite result. Not least, the seemingly backward notion of “civilized na-tions” illustrates that legal principles of law are part of a law of reason which is independentof mere factual recognition. The term “principles of law” itself fits into the reason of law ter-minology. If a term like civilized nations shall have any meaning, then certainly mere “defacto recognition” of something is not enough. It rather assumed a system of principles withthe coordinates “right / wrong” as the basis of an international legal order. In that spirit, wecan embrace the following, derived from the general theory of justice: There is a universaland global system of principles of justice (human dignity, impartiality, freedom / freedomcondition, separation of powers and democracy). This system is prior to “simple” law. As partof it, the guarantees of freedom/ human rights might be “general principles of law recognizedby civilized nations” (perhaps more than has been the conventional wisdom in internationallaw). How these principles can be derived in a logically rigorous way as contents of a virtuallaw of reason was shown elsewhere. That reason is the theoretical foundation of human dig-nity, which in turn is the basis for human rights then, is also expressed in norms such as Art-icle 1 of the German Basic Law or Article 1 UDHR and its preamble.
Therefore, a right to food can be based on the ICESCR as well as on general principles oflaw. It is important to note that freedom and its basic conditions also have an intergeneration-al79 and global80 dimension. For the right to equal freedom must point into that direction whereit is threatened - and these threats in a technological, globalised world occur increasinglyacross generations and across national borders. Consequently, they are also relevant for typic-
sanctions; cf. Alexy, Theorie der juristischen Argumentation, 2 ed. 1991. 76 However, this is not the most important aspect, since Article 38 ICJ Statute is not the legal basis of the exist-ence of the different sources of law but only cites them. 77 These and other frictions are well-known to justice philosophy from disputes with contextualist and preferencebased approaches. – Regarding the concept of a “common welfare” or “common good” (Gemeinwohl), the solu-tion might be to retire the concept at all. For the overarching aim of any legal order including its impartiality theconcept of justice already exists. For a further description of normative interests beyond individual rights, the no-tion of common welfare is too less substantiated and too susceptible to manipulation; cf. Ekardt, Demokratie,chapter III B. and IV E. 78 Regarding customary law the paradoxes just described with respect to principles of law could simply be re-peated. The conclusion, however, would be that principles and customary law are clearly distinguishable and thatcustomary law should be limited. In any event, the clear distinction between customary law and principles is an-other argument in favour of our position. This as well as the general tension between the concept of customarylaw and the idea of a modern law based on and established in due process is overlooked by the majority opinion;cf. e.g. again Maurmann, Rechtsprinzipien, passim. 79 With somehow similar arguments see also Unnerstall, Rechte, p. 422 et seq.; the basic tendency without fur-ther reasons e.g. Kloepfer, in: Gethmann/ Kloepfer/ Nutzinger (ed): Langzeitverantwortung im Umweltstaat,1993, p. 22 (26 et seq.); Murswiek, Die staatliche Verantwortung für die Risiken der Technik, 1985, p. 212;more detailed Ekardt, Theorie, §§ 4, 5; those arguments are overlooked by Eifert, Kritische Justiz 2009, p. 211 etseq., who thus incorrectly states a lack of reasons. 80 Similar Giegerich, EuGRZ 2004, p. 758 et seq.
al conflicts of international law, i.e. cross-border conflicts, such as bioenergy import prohibi-tions. With all this said, it may remain undecided whether such general principles of lawcome into play even if the law of contracts itself deals exhaustively with the respective ques-tion. 9 For this is, as we have seen, controversial. D. A right to food’s scope of application
We still need to clarify what subsistence (or “food”) is and how it can be calculated. Accord-ing to General Comment No. 12 of the Committee on Economic, Social and Cultural Rights,the right to food is to be understood as follows: It includes to distinct elements: accessibilityand availability. The access element can be subdivided into an economic and a physical cri-terion.81 Availability must be given in both respects, qualitatively and quantitatively. 82 Eco-nomically, access to food is ensured, if the costs of food are not precusively high so that theyprevent the purchase of other essentially important items. 83 Physical access exists when ad-equate food is available for every person and every group.84 Food is available in quantitativeterms, if everyone has the opportunity to feed upon either agricultural or other products or onthe basis of a functioning economic market, in which the produced goods are (physically)taken within everyone’s reach.85 In accordance with the given ratio we might also say thatfood must be available in such a manner that guarantees a life of dignity86 or freedom respect-ively.
Thus, the right to food has certain content and is not left to the legislature’s discretion (not-withstanding that need to balance). It is also no valid objection that the minimum subsistencelevel cannot exactly be determined.87 This rather reflects the application of a well-knownphilosophical phenomenon attributed to Eubulides of Miletus, the sorites paradox or paradoxof the heap. It illustrates that even though the exact threshold might be indeterminable there isstill a good reason for differentiation. Consider a man 1.50 m tall and another one 2.00 mtall. There would be agreement that while the first man is small, the second man is tall. Howabout a man standing 1.70 m? The threshold for when a man is small or tall (or respectivelywhen a number of grains is a heap or just a pile or where exactly the subsistence minimum ineuro) is hard to determine. Yet, that does not render it useless. The remaining questions mustbe answered in a democratic process, through legislative, executive and judicial branches.88
Furthermore, it does not contradict the idea that sometimes autonomy is to be reached throughactive State interference, by means of benefits, or at least protective measures. For autonomyis only facilitated without imposing certain behaviour.89 No one is legally forced to eat - evenif there is a popular misconception regarding the contents of protection or performance / bene-ficial rights.
81 General Comment 12, No. 6. 82 General Comment 12, No. 8. 83 General Comment 12, No. 13. 84 General Comment 12, No. 13. 85 General Comment 12, No. 1286 German Federal Administrative Court, Vol. 25, 23 (27); see also Riehle, ZFSH/ SGB 2008, p. 643 (644). 87 See, for example, the language of Article 11, Paragraph 1 ICESCR: “adequate standard of living” (emphasisadded). 88 Ekardt, Demokratie, p. 88; Luthe/ Dittmar, SGB 2004, p. 272 (274). 89 Neumann, Neue Zeitschrift für Verwaltungsrecht 1995, p. 426 (426); Ekardt, Die Verwaltung 2010, Beiheft 1. E. Human rights in the law of the WTO - the example of bioenergy
We now turn to the question whether the right to food as just described can justify trade re-strictions on bioenergy. Generally, do human rights have an impact on the interpretation ofWTO law? 90 World trade law does not explicitly refer to human rights.91 Still many demandtheir application in this are of international law.92 However, WTO case law refuses the applic-ation of human rights.
A general prohibition of or a quantitative limitation on the use of bioenergy in the interest ofsecuring sufficient food should only be a WTO concern, if it implied any (legal or factual)discrimination against foreign bioenergy.93 Furthermore, Articles XI:2 a) GATT and othersimilar provisions quite clearly allow developing countries to restrict bioenergy exports withregard to food security. A latent conflict still arrives if the import of bioenergy from certaincountries is specifically limited or made subject to conditions. In this case, there would beneed for a justification which might be based on human rights.
Therefore, the question is whether human rights can or even must be considered in interpret-ing WTO law (regardless of whether this should be done with respect to Article 11 ICESCRor to general principles of law). Our opinion is that they have to be considered for the follow-ing reasons: Firstly, Article 3 No. 2 DSU states that the WTO dispute settlement system clari-fies WTO law “in accordance with customary rules of interpretation of international law.”Secondly, according to Article 31 of the 1969 Vienna Convention on the Law of Treaties(VCLT) when a treaty is interpreted any relevant rules of international law applicable in therelations between the parties shall be taken into account. Since the right to food, as we haveseen, is not only established in the ICESCR, but can also be derived from the general prin-ciples of law, it does not matter whether all States are party to the ICESCR. Moreover, it is ir-relevant that at the time of the adoption of the GATT 1947 human rights were certainly notassumed to have a direct influence on international trade law. Accordingly, the AppellateBody correctly held in its Shrimp decision that (in terms of Article XX g) GATT) the focus oflegal interpretation is not its historic origin.94 Taking into account human rights will also not“overburden” WTO law but rather provide an adequate balance of various spheres of freedomin a complex globalised world. Furthermore, it has to be noted that most States have ratifiedthe international human rights treaties of 1966. At the same time, the obligation to respect hu-man rights when interpreting treaties would make it easier for the contracting parties to com-ply with international law. Neither would an alleged cultural imperialism be a valid objection:If human rights catalogues are global and universal, then, by definition, they apply every-where. Whether they are factually applied is a somewhat different debate which we leave to
90 See von Bernstorff, Verfassung und Recht in Übersee 2009, . 91 Cf. for the starting point oft he debate Hilf/ Oeter, WTO-Recht, 2005, § 34 No. 1; Hermann/ Weiß/ Ohler,Welthandelsrecht, 2 ed. 2007, No. 1095. 92 Cf. Herrlich, Menschenrechte, passim; Faden, Menschenrechte, p. 46 et seq.; Ekardt/ Meyer-Mews/Schmeichel/ Steffenhagen, Welthandelsrecht, chapter 4.3; see also von Bernstorff, Verfassung und Recht inÜbersee 2009, ….; more reluctant Hilf/ Oeter, WTO-Recht, § 34 No. 27, 28; Hermann/ Weiß/ Ohler, Welthan-delsrecht, No. 1107; on the discussion also Guzman, Harvard International Law Journal 2004, p. 303 et seq.;McGinnis/ Movsesian, Harvard International Law Journal 2004, 353 et seq.; Petersmann, Leiden Journal for In-ternational Law 2006, p. 633 et seq. 93 Regarding the question of equal protection and discrimination, see in detail Ekardt/ Hennig/ Steffenhagen,JbUTR 2010, i.E. 94 Cf. Report of the Appellate Body: US – Shrimp, p. 48 No. 129; for a general overview of the doctrine of inter-pretation Ekardt/ Beckmann, Verwaltungsarchiv 2008, p. 241 et seq.
the cited literature.95 Thus we come to the conclusion that the right to food plays an importantrole in WTO law in general and specifically in the context of bioenergy. But where exactlyare the starting points for this?
Article III GATT prohibits the discriminatory treatment of foreign goods such as import bansof foreign goods which are no different from domestic goods.96 Article XX GATT, however,states general exceptions, where such measures are for instance “necessary to protect publicmorals” (Article XX a) GATT) or “human life” (Article XX b) GATT). The human right tofood can concretise those vague terms. Therefore, it may serve as a justification for trade re-strictions (e.g. on bioenergy). Of course, further requirements for the justification of trade re-strictions under Article XX GATT must always be met. The human right to food might stillprove helpful with regard to those requirements, namely the attempt to find multilateral solu-tions together with other States before imposing unilateral trade restrictions: The right to foodshows that certain principles exist which bind other States anyway (through the ICESCR orgeneral principles of law) without the need for further multilateral negotiations. For the samereasons, the regularly contested point whether extra-territorial interests might be protected(e.g. rights of starving people outside the State banning imports, in fact in developing coun-tries) might be answered in the affirmative.97
Another fundamental problem of bioenergy import restrictions remains which an applicationof the right to food may solve only partly. This is both, a political and legal problem. The jus-tification under Article XX GATT finally depends on whether the measure was “appropriateand necessary.” Yet that is not easy to assess. Assuming a world food market exists, it wouldbe hard to prove the necessity to protect a certain State’s food production in order to guaran-tee sufficient food. Even if the respective measure could still be justified under Article XXGATT, from a political point of view it seemed more sensible to take the right to food as afoundation not for unilateral import restrictions, but for an overall quantitative restriction (butnot sustainability criteria control) of bioenergy, as was indicated earlier in chapter A. F. Hierarchy within international law?Jus cogens and constitutionalisation
The idea of having general principles of law besides international treaty law, which might im-pose legal obligations even on States disagreeing with the respective principle, leads us to thequestion of whether or not general principles, then, should be considered as a kind of “consti-tution of international law”. Taking the concept of principles of law seriously would thus ne-cessarily result in a new hierarchy within international law. This would further exacerbate thedoubts towards national sovereignty (which, in addition, has often evolved in a non democrat-ic process). It is well-known, that the legal practice is reluctant towards a hierarchy within in-ternational law or between different legal levels (e.g. national, European, internationallaw).98 Yet, sometimes a hierarchy between legal levels is recognized though not always in fa-vour of international law, sometimes a dualistic model is applied in which different legal sys-
95 See fn. 91-92. 96 Regarding the specific test of Articles III and I GATT when applied to bioenergy Ekardt/ Hennig/ Steffenha-gen, Jahrbuch des Umwelt- und Technikrechts 2010 (forthcoming); in general on these provisions in the contextof climate see Ekardt/ Schmeichel, Critical Issues in Environmental Taxation 2009, p. 737 et seq. 97 Regarding extra-territoriality and multilaterality in WTO law in the context of bioenergy see Ekardt/ Hennig/Steffenhagen, Jahrbuch des Umwelt- und Technikrechts 2010, i.E. 98 See in detail Herdegen, Völkerrecht, § . No. 1 et seq.; Kunig, in: Graf Vitzthum, Völkerrecht, ., p. 83, No. 28 et seq.
tem or regimes stand side by side. The latter case, of course, obstructs any idea of legal hier-archy. Meanwhile, the European Court of First Instance (CFI) in 2005 and 2006, has adoptedthree heavily discussed decisions.99 From the combined effect of Articles 25, 48, paragraph 2,103 UN Charter, Article 27 VCLT, and Articles 307, 297 EC the CFI established a supremacyof parts of international law towards European Community law (and national law), i.e. (a) amonistic concept of legal levels.100 At the same time, the CFI must have assumed (b) a kind ofhigher-ranking “constitutional” law within international law. Finally, human rights were apart of the latter.101 Only the first, but not the second, for our analysis crucial point, was over-ruled by the ECJ.102
The primacy of certain standards in international law is already determined by Article 53VCLT. The only question is whether its jus cogens consists of only a few rules (such as pactasunt servanda) leaving wide discretion to the States or, as the CFI-ruling seems to suggest,whether especially human rights (and not just the prohibitions of torture, slavery, and geno-cide) successively, as jus cogens, can be interpreted as a kind of “world constitution”. The lat-ter would be particularly convincing if one assumes that the sovereign State is not an end initself or an expression of any vague collective interests, but rather a means to protect the indi-viduals and their opportunities to develop. As we have seen, this would not necessarily belimited to a protection against public powers, but it would also result in a protection by thepublic powers against fellow citizens. If political systems ought to serve freedom and its basicconditions (i.e. human rights) political institutions must exist where and how it is necessary toserve freedom optimally. But if such a protection of freedom cannot be secured through na-tional law or international treaty law inspired by self-interest, it is necessary to consider trulyglobal institutions which could provide for policy-making beyond consensus and nationStates’ self-interests as well as effective enforcement. And that the law must be focused onfreedom of the autonomous individual could be derived from the law of reason, as indicatedabove. Yet, to refer to the States as “masters of the Treaties” and therefore masters of interna-tional law is not a valid objection. For if the individual is the true yardstick of the law, the po-sition of the nation State is limited to what is beneficial to the individuals.103
G. Balancing human rights?
After all, we still need to consider whether and how the human right to food is subject to abalancing of conflicting interests, such as the economic freedom of bioenergy producers. Thatsuch balancing104 is inevitable is not only shown in the wording of Article 11 ICESCR but
99 European Court of First Instance, Ahmed Ali Yusuf and Al Barakaat International Foundation ./. Council andCommission, Judgment of 21/09/2005, T-306/01 …. 21/09/2005, EuGRZ 2005, p. 592 et seq.; see also Arnauld,Archiv des Völkerrechts 2006, p. 201 et seq. 100 Cf. Maczynski, Europäische Zeitschrift für Wirtschaftsrecht 2006, 459 (460); Epiney, Europäische Zeitschriftfür Wirtschaftsrecht 1999, p. 5 (6). 101 Cf. CFI, Yusuf, No. 277. 102 Cf. European Court of Justice, .; this rejection of a true monism goes in line with European case law on therelation of European law and WTO law; cf. European Court of Justice, Case 21/72, Int’l Fruit Co. v. Produktschap vorr groenten en fruit, 1972E.C.R. 1219 (1972), No. 21 ff,: Case C-280/93, Germany v. Council,1994 1994 E.C.R. I-4973, No. 103 et seq. 103 In the affirmative e.g. Kokott, Veröffentlichungen der Vereinigung der deutschen Staatsrechtslehrer 20., 7(36); Ekardt/ Lessmann, Kritische Justiz 2006, p. 381 et seq. (with further explanations on the dualism betweenmonism and dualism; It is shown that in contrast to a common opinion the German Basic Law provides for amonism in favour of international law; already today in favour oft he ECHR and in favour of the whole interna-tional law at least if human rights have been recognised worldwide. 104 See in greater detail Susnjar, Proportionality, Fundamental Rights, and Balance of Powers, 2009, i.E. andEkardt, Die Verwaltung 2010, Beiheft 1.
also became clear in our former general discussion in Chapter B. The current international hu-man rights discourse seems to ignore this fact since it either attributes human rights with anabsolute character defying every attempt to balance or, conversely, characterises them asmeaningless due to their need for balancing (as is sometimes true for the right to food).105
The basic principle, on which balancing is founded, can be described as follows: The right isprimarily meant to adjust conflicting interests. The result of this legislative adjustment is“written down” in the law. In democracies, the underlying balancing of conflicting spheres offreedom is initially made by a parliament. The framework for this regulatory balancing is of-ten referred to as the test of proportionality. In a more abstract way, we can think of “rules ofbalancing” or simply a framework, which must not be exceeded by the legislature. The ad-ministration, at least where the legislature has made use of its power, is more or less limited tothe interpretation of the rules, the legislature created as an expression of its balancing author-ity. The administration is more flexible where the legislature has not considered the respectiveinterests so far but has left it partially for the administration to decide. In Germany, this iscalled discretion (Ermessen) or (planning) assessment (planerische Abwägung). This conceptseems sensible cum grano salis without regard to the respective level of law (e.g.national,European or international law). The role of courts in each case is not to make an own consid-eration, but rather to verify whether the competent legislative or executive body has compliedwith the limits of balancing (or of interpretation of norms). The limits of balancing arise fromthe rules of balancing as they can be derived from the affected interests.
The idea of “balancing” is sometimes hard to accept, since under certain circumstances itmight result in death. However, without some kind of balancing the Industrial Society wouldper se be in violation of human rights. Therefore, the very rules of balancing are para-mount. Finally, we briefly mention a few key aspects:
• Anyone’s freedom should not be restricted if this does not benefit another one’s free-
dom. Against this background, with regard to bioenergy it must always be closely ex-amined whether the reduction of economic freedom actually increases the food secur-ity.
• The factual basis for balancing is crucial. Accordingly, measures restricting bioenergy
trade must be based on a thorough determination of the food market.
• Two others are rules provide that there must not be an evident one-way derogation of
one concern in favour of the other- and that the impact on the relevant concern has tobe considered. Both aspects follow from the idea that overall freedom should be max-imized.
• Although balancing in general is inevitable, we must consider (especially for a funda-
mental right such as the right to food) whether under certain circumstances balancingis limited. The central problem of bioenergy is it that when it comes to tightening upthe world food situation this could be fatal for a number of people. In abstract terms: itis inherent to the right to food (such as to the right to life) that impairments of theseelementary preconditions of freedom more or less inevitably kill the affected people.
105 These frictions become visible e.g. in Gibson, Saskatchewan Law Review 1990, p. 5 et seq.; Nickel, YaleLaw Journal 1993, p. 281 (282); more posivitely e.g. Kiss, in: Kromarek (ed), Environnement et droits del’homme, 1987, p. 13 et seq.; Donnelly, in: Brölmann/ Lefeber/ Ziek, Peoples, p. 119 et seq. That the Anglo-Saxon debate lacks sufficient notice to balancing is even illustrated in a differentiated study like the one ofHiskes, The Human Right to a Green Future, 2009.
That this does not categorically prohibit balancing was demonstrated in ChapterB. However, it shows that the right to food will tend to outbalance economic freedomand may be subordinated only under extraordinary circumstances. A total prohibitionon balancing, though, would be difficult to justify. The usual reference to the innocenthuman life and human dignity106 does not change this conclusion. Human dignity, aswe have seen in chapter B, is not a rule applicable to specific cases. Moreover, the dif-ference between certain and uncertain encroachments of human rights does not lead toany kind of total prohibition of balancing (this will be explained in the next point).107
• However, one might think that the relation between bioenergy and sufficient food is
still “uncertain” and, therefore, the right to food is not relevant at all in this context. (One might further imagine, as a complement, that in “certain” situations balancingwould totally be prohibited). In Germany, instances of precaution, i.e. uncertain inter-ference with human rights, are usually considered irrelevant in terms of humanrights.108 Such threats are not based on a single cause, but cumulatively with our con-ditions cause damage and may also occur only over a longer period. Thus, it appearsmore appropriate to consider those uncertain infringements to human rights indeed rel-evant. Because even if the damage to each individual is uncertain, statistically in themedium term damage to a certain number of people can be expected, if e.g. food re-sources are decreased through increased use of bioenergy. If this “uncertain” interfer-ence (as in the case of the right to food) is considerable and at the time of occurrenceis expected to be irreversible, then this shows that balancing must also account for“uncertain” human rights infringements.109
• Finally, it is impossible to quantify balancing: While economists like to present balan-
cing as a cost-benefit analysis, in which not only a framework of balancing rules ap-plies, but rather an exact mathematical calculation determines the proper bal-ance. However, the conflicting rights do not have a mathematically specifiableweight.110 It is therefore unavoidable that there is some leeway for balancing.
106 German Federal Constitutional Court, Neue Juristische Wochenschrift 2006, p. 751 (757 et seq.); Menzel/Pierlings/ Hoffmann, Völkerrechtsprechung, 2004, p. 511; Hong, Folterverbot und der Menschenwürdegehaltder Grundrechte – eine verfassungsrechtliche Betrachtung, in: Beestermöller/ Brunkhorst (ed), Rückkehr derFolter, 2006, p. 24 (34). 107 A total prohibition of balancing appears possible if it can be justified by other reasons. Regarding the prohibi-tion of torture, it could probably be based that torture might threaten the liberal nature oft he system as a whole. 108 Cf. e.g. German Federal Administrative Court, Neue Zeitschrift für Verwaltungsrecht 1995, 995 et seq.; notrecognised in Couzinet, Deutsches Verwaltungsblatt 2008, p. 760 et seq.; in greater detail on the discourse overdanger defence and the precaution Ekardt/ Schmidtke, Die öffentliche Verwaltung 2009, 187 et seq. 109 Cf. Ekardt/ Schmidtke, Die öffentliche Verwaltung 2009, 187 et seq. (also to the further problem that the ma-jority opinion in Germany refers to the average citizen thus not accounting for weaker fellow citizens, e.g. preg-nant women, the elderly, or children); cf. also Böhm, Der Normmensch, 1996. 110 Cf. Ekardt/ Wilke, The Limits to Climate Economics (forthcoming).
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COCHISE COMBINED TRUST Minutes of Tuesday, February 19, 2013 Annual Retreat Work Session Meeting Trustees Present: J.D. Rottweiler, Vice Chairperson / Treasurer Wendy Davis, Trustee Julie Morales, Trustee Others Present: Rick Cajthaml, Meritain Wendy De La Cruz, Cochise County Rich Hanna, Ameritas Mike Hensley, Jones Skelton & Hochuli Andrea Mannino, Blue Cross Blue