Inga T. Winkler, PhD Candidate Heinrich Heine University Düsseldorf School of Law Lerchenstraße 24, 70176 Stuttgart +49 711 2296873 [email protected]

A Human Right to Water for Food Production?

Inga T. Winkler

Abstract ...... 2 Keywords ...... 2 I) Introduction ...... 2 II) Is there a Need for a Human Right to Water for Food Production?...... 3 III) What Could Be the Legal Foundations of a Human Right to Water for Food Production? 4 1) The Right to Water...... 4 2) The Right to Food ...... 5 IV) What Water Use Is Relevant for the Realisation of the Right to Food? ...... 6 1) Only Water Use Aiming at Food Production...... 6 2) Only Water Use Aiming at the Realisation of an Adequate Standard of Living ...... 6 V) What Obligations do States Bear in Regard to the Right to Food and in how far is Access to Water Relevant? ...... 8 1) Obligation to Respect...... 9 2) Obligation to Protect ...... 9 3) Obligation to Fulfil...... 10 VI) Conclusion...... 12 Author’s Note...... 12 References ...... 12

1 A Human Right to Water for Food Production?

Inga T. Winkler

Abstract The human right to water has gained broad recognition in recent years. It covers water for personal and domestic usage. Yet, water is also a critical factor in producing food. In rural areas, a great number of people living in poverty rely on subsistence farming for their livelihoods and the satisfaction of their food needs. Severe poverty is often found where access to water resources is unreliable. The paper therefore goes beyond the question of a human right to drinking water addressing the question whether there is a human right to water for food production. This would result in the guarantee of significantly higher quantities of water than water for personal and domestic use as at least 2,000 litres per person are necessary to produce sufficient food for one day. The paper considers the human right to water as well as the human right to food as legal foundations for a human right to water for food production. It argues that the question should be considered in the context of the right to food because agricultural water use aims at the fulfilment of food requirements. The paper then turns to the question of State obligations in regard to the realisation of the right to adequate food. It focuses on policy options that States have to fulfil the right to food and in how far access to water resources is necessary to accomplish this aim. It will be shown that States have a number of options to fulfil the right to food and that they are not constrained to providing access to water resources for subsistence agriculture. It is thus concluded that there is no specific human right to water for food production. Rather, providing access to water resources is an important measure for the realisation of the right to food, but not the only one.

Keywords Agricultural Water Use, Human Right to Food, Human Right to Water, Subsistence Agriculture, Water for Food Production

I) Introduction The human right to water for personal and domestic use is increasingly gaining recognition (cf. e.g. CESCR 2002; Riedel 2005; Gleick 1998; Cahill 2005). It covers water for drinking purposes as well as for personal hygiene, washing, cleaning and sanitation. The MDGs as well focus on the access to safe drinking water and sanitation. Water for these purposes is critical to improve the health of individuals.

Yet, access to water is also required for other purposes. It has rightly been pointed out that in particular people living in poverty do not only require water to satisfy their personal and domestic basic needs, but that it is also critical for other uses such as food production and income generation pertaining to the broader goals of poverty reduction and enhancing livelihood security (PEP 2006: 31 et seq.; Nicol 2000: 7, 14). The Sustainable Livelihoods Approach allows for a broader scope comprising the capabilities, assets and activities that are necessary for a means of living (DFID 1999). It aims to enhance “the ability of poor people to use their assets and capabilities to make a living in conditions of greater security and sustainability” (PEP 2006: 29). Many activities that enhance livelihood security including small-scale farming, gardening, watering livestock as well as micro enterprises, e.g. laundry services, and small-scale manufacturing such as brick-making and pottery require access to water (PEP 2006: 31; Nicol 2000: 21). Water security is thus vital to the livelihoods of a great number of people living in poverty (UNDP 2006: 173 et seq.; WWAP 2006: 268).

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The paper takes account of these propositions and addresses these broader concerns from a human rights perspective. Yet, it would be beyond the scope of the paper to deal with them in their entirety. Rather, the paper puts its focus on people who rely on subsistence agriculture for their livelihood security and thus on water for food production. Some documents on the human right to water also stress the significance of water for agricultural production (cf. CESCR 2002: Para. 6; cf. as well Cahill 2005: 306), but leave it open whether this water use is in fact guaranteed by human rights. This paper aims to explore this question in more detail.

A human right to water for food production would result in a guarantee of significantly higher quantities as food cultivation requires much larger amounts of water than personal and domestic needs. Whereas the latter can be satisfied with about 100 litres per person per day (l/c/d) (Howard / Bartram 2003: 22), at least 2,000 l/c/d are required for producing food (WWAP 2006: 247; Molden 2007: 78). As these water quantities are much larger than those that are necessary to fulfil personal and domestic needs, such a human right would oblige the State to allocate a significant share of total withdrawals for agricultural purposes to produce sufficient food.

Allocation becomes even more difficult with rather new non-food uses of water in the agricultural sector such as bio-fuel production putting increasing strain on water resources. It is therefore more important than ever to seek approaches that aim to achieve an equitable allocation. Human rights can be a means to set priorities in these questions of allocation. Water uses necessary to satisfy basic human needs whose fulfilment is guaranteed by human rights have to enjoy priority (Winkler 2008). In so far, an approach that is based on human rights can be an advantage as human rights strengthen the position of vulnerable and marginalised groups. Human rights aim at the empowerment of currently disadvantaged groups. They serve as legitimate claims that give rise to corresponding obligations borne by the State (Moser / Norton 2001: 10) and are therefore a valuable instrument to address power imbalances that exclude people living in poverty from access to the assets necessary for a secure livelihood (Moser / Norton 2001: 14), such as access to water resources. Furthermore, human rights are a means to hold governments accountable by demanding what States have committed themselves to (Kent 2005: 126 et seqs.).

In the following, the first question to be answered is, if and why water for food production should be considered from a human rights perspective. The paper will then examine whether water for food production should be considered in the context of the right to water or the right to food. It will continue by further exploring the link between water use and food production focusing on the specific situation of people relying upon subsistence agriculture. Finally, the obligations borne by States regarding the realisation of the right to food and the relevance of access to water resources for its production will be examined, again making specific reference to people who rely on subsistence farming.

II) Is there a Need for a Human Right to Water for Food Production? Water is of fundamental importance for agricultural production as no food can be produced without access to water. A minimum of 2,000 l/c/d of water is necessary to have sufficient food produced for basic requirements (WWAP 2006: 247; Molden 2007: 78). However, there are great variations as to the kind of reliance on access to water. Many people buy readily produced food stuffs and the necessary water resources to produce these have therefore often been used at great distances – often even abroad. Accordingly, water for the production of food is not necessarily used by the person consuming the food, not necessarily in the watershed where that person lives, and not even necessarily in his or her country in the case of 3 food imports. Of course, water is used at some location to produce food, and overall sufficient water resources have to be allocated for agricultural production. However, food can easily be transported from regions with high water availability to those with low water availability. Accordingly, people do not depend on direct access to water resources and there is no need for a specific human right to water for food production besides the human right to food.

However, others produce their own food relying on subsistence farming and accordingly on sufficient water resources close to their dwelling. In spite of continuing urbanisation billions of people, predominantly in rural areas, rely (at least partially) on subsistence agriculture (Brüntrup / Heidhues 2002: 7). Apart from access to land in general and soil fertility in particular, access to water resources is a decisive factor in determining the possibility of agricultural production in a given region as well as its outcome and success (PEP 2006: 22). Severe poverty is often found where access to water resources is uncertain due to the unpredictability of rainfall and flooding (Molden 2007: 71). Therefore, reliable access to water for subsistence agriculture, home gardens and livestock raising is a key to improving food security of those most vulnerable to hunger and malnutrition (PEP 2006: 23).

Many people in rural areas depending on subsistence agriculture are directly affected by insufficient water provision in their food supply. Currently, 850 million people are undernourished (WWAP 2006: 265; Molden 2007: 41), i.e. the food available to them is not sufficient to meet their basic energy needs (PEP 2006: 13). Every year about 20 million people die from the consequences of undernourishment (Nuscheler 2006: 252). Further one to two billion people are considered malnourished lacking a balanced diet (Nuscheler 2006: 252; PEP 2006: 13). They either do not have sufficient income to buy the necessary food stuffs or they do not produce sufficient food for their own consumption. Of course, their dependence on water resources differs according to their place of living, in particular whether they live in rural or urban areas. About two thirds of malnourished people live in rural areas and depend on agricultural production for employment, income and food (UNDP 2006: 173 et seq.; Nuscheler 2006: 260). This group includes smallholder farmers and landless rural people (Molden 2007: 65). Hunger and malnourishment are thus predominantly rural phenomena. It is estimated that 50 percent of undernourished people are smallholder farmers who directly depend on access to water resources for their own nutrition as well as income generation (Molden 2007: 65), this group thus consisting of more than 400 million people. A direct link between undernourishment and the lack of access to water resources can be observed here. For this group of people, local access to water resources is critical to ensure access to sufficient food and thus the realisation of the human right to food. Thus, there is a need to consider access to water for food production from a human rights perspective.

III) What Could Be the Legal Foundations of a Human Right to Water for Food Production? The human right to water for food production could be covered by the human right to water or by the human right to food. These will therefore be considered as potential legal foundations.

1) The Right to Water Water requirements for the production of food are often mentioned in the context of the human right to water (cf. CESCR 2002: Para. 6; Cahill 2005: 396) and seem to be closely linked to it. Therefore, it first needs to be considered whether water for food production is covered by the right to water. In recent years, an increasing consensus has been found on the right to water as being derived from the right to an adequate standard of living in Art. 11(1) of the International Covenant on Economic, Social and Cultural Rights (hereafter Social Covenant) and the right to health in Art. 12 of the Social Covenant (CESCR 2002: Para. 3; 4 Riedel 2005: 596; Gleick 1998: 492). Regarding its content, water for personal and domestic use is unquestionably covered (CESCR 2002: Para. 2; Gleick 1998: 491; Cahill 2005: 392).

Going beyond these uncontentious uses, the question to be addressed in the context of this paper is whether water for food production is also covered by the right to water. It can be argued that food is as basic a need as drinking water and that water for food production therefore needs to be guaranteed with the same priority.

Yet, it has to be kept in mind that water used in agricultural production aims at a different purpose. It does not aim at fulfilling water requirements as such, but food requirements. If water for these purposes were taken to be guaranteed by the right to water, there would be no reason not to include water for energy production or other water uses that aim at fulfilling basic human requirements under the right to water. As such, the concept of the human right to water would risk to be undermined by broadening its scope and letting it become less tangible.

Moreover, there are fundamental differences between access to water for personal and domestic needs on the one hand and access to water for food cultivation on the other hand that let it seem favourable to keep them separate: For, example, the supply of water to households requires infrastructure that is fundamentally different from the one necessary for the supply of water for agricultural purposes. Moreover, water quality standards in regard to drinking water differ substantially from those for agricultural water use. Thus, it seems preferable to distinguish water used for food production from water that is directly used in households. The right to water therefore does not cover water used for food production.

This is in line with the General Comment No. 15 of the United Nations Committee on Economic, Social and Cultural Rights (CESCR), which can be regarded as an authorative interpretation of the Covenant rights. The General Comment No. 15 recognises that water is required for a range of different purposes including food production and stresses the importance of sustainable access to water resources for agriculture (CESCR 2002: Para. 6, 7). Yet, it does not regard the right to water as covering water for food production, but considers it in the context of the right to food. This human right will therefore be explored as a potential legal basis in the next step.

2) The Right to Food Art. 11(1) of the Social Covenant guarantees the right to food as part of the right to an adequate standard of living. Moreover, Art. 11(2) recognises the fundamental right of everyone to be free from hunger. Other relevant provisions are for example found in the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women and regional human rights instruments. According to the CESCR the realisation of the right to food requires that everyone “has physical and economic access at all times to adequate food or means for its procurement” (CESCR 1999: Para. 6).

The most basic obligation is referred to in Art. 11(2) of the Social Covenant requiring States to prevent starvation and to guarantee access to the minimum essential food in sufficient quantity, nutritionally adequate and safe to ensure freedom from hunger (CESCR 1999: Para. 14). This can be regarded as the minimum level of realisation of the right to food (Reimann 2000: 170, 172; Breining-Kaufmann 1991: 164; Alston 1984: 33). In its full extent, the right to food reaches further than that (Alston 1984: 32; Künnemann 2002: 79) being specified by the term of adequateness. It implies the availability of food in a quantity and quality that is sufficient to satisfy the dietary needs of individuals. It has to be free from adverse substances

5 and acceptable within a given culture (CESCR 1999: Para. 8; Eide 2001a: 134; Alston 1984: 33). This is further specified in subsequent paragraphs of the General Comment No. 12. The most important feature in the context of this paper is availability. It can be ensured in two ways, either by guaranteeing the possibility to feed oneself directly from productive land or other natural resources or by having the necessary means to procure food via distribution and market systems (CESCR 1999: Para. 12; Eide 2001a: 135; Künnemann 2002: 79), a distinction that will be of further relevance for the analysis below.

In any case, in order to fulfil these food requirements agricultural production is necessary which in turn is impossible without water. In so far, the Voluntary Guidelines on the Right to Food stress the importance of access to water resources (FAO 2005: 18). Therefore, it seems pertinent to consider access to water for food cultivation under the human right to food. In the following, it will be further specified further in how far access to water use is relevant for the realisation of the right to food. Subsequently, it will be explored what obligations States have in regard to the right to food and in how far access to water is relevant to realise these.

IV) What Water Use Is Relevant for the Realisation of the Right to Food? The agricultural sector is the largest water user. Yet, not all of the water used in agricultural production is required to fulfil the human right to food. In the following, it will therefore be examined, what water use is actually relevant for realising the right to food.

1) Only Water Use Aiming at Food Production About 70 percent of the global water use occur in the agricultural sector (WWAP 2006: 245). Yet, this percentage differs significantly between States of the Global South and the Global North. Whereas irrigated agriculture only accounts for 30 percent of water use in Europe and 41 percent in the United States (Falkenmark / Widstrand 1992: 14), up to 90 percent of water withdrawals are used for agricultural purposes in many countries of the developing world (Engelmann / Dye / LeRoy 2000: 19).

It is important to keep in mind that agriculture is a very heterogeneous sector ranging from large-scale industrial farming to subsistence agriculture. Moreover, the cultivation of a wide range of crops does not aim at fulfilling food requirements. One such example is flower production, e.g. in Kenya. In 2001, the country has exported 52 million tons of flowers to Europe, Japan and North America (Wuppertal Institut für Klima, Umwelt und Energie 2005: 111). The same holds true for the currently increasing growth of crops for bio-fuel production such as ethanol and biodiesel. Currently, Brazil accounts for 50 percent of global ethanol exports (Hughes / Partzsch / Gaskell 2007: 60), but a great number of other countries around the world are already employing or exploring the potential of biofuels as well (Hughes / Partzsch / Gaskell 2007: 58). In the European Union, about ten percent of the cultivated area is already used for the cultivation of bio-fuels (Nuscheler 2006: 256). As these non-food water uses are augmenting, they put increasing strain on water resources.

Evidently, these non-food water uses do not aim at realising the right to food. However, they have considerable consequences. As non-food uses of agricultural water use gain significance, the competition over water resources is intensified thus reinforcing the need to set priorities in the allocation of resources in order to ensure that the basic needs of all people can be met.

2) Only Water Use Aiming at the Realisation of an Adequate Standard of Living As outlined above, the right to food aims at the realisation of an adequate standard of living. It thus goes beyond ensuring mere survival requirements, but is, of course, not limitless.

6 The first priority is to prevent starvation, i.e. to satisfy the minimum energy requirements of all people. In order to assess water requirements for that purpose it seems pertinent to look at staple foods. Rice, wheat and other cereals are a major component of any diet; they represent more than half of all food consumed in terms of energy supply (WWAP 2006: 248) with rice probably being the most common staple food (Howard / Bartram 2003: 9). For a suggested intake of 600 grams of rice per day (Howard / Bartram 2003: 9), approximately 1,600 litres of water are needed for its production (WWAP 2006: 258) not yet taking into account water needed to produce the remaining necessary food intake.

However, the right to adequate food goes beyond ensuring minimum survival requirements, but requires satisfying the dietary needs of each individual. In order to be adequate, a diet has to be complete in energy terms and balanced in terms of the nutritional value. As for energy requirements, a value of 2,800 kcal/c/d can be taken as an approximate threshold for national food security (WWAP 2006: 245 et seq.) while it is much more complex to determine the prerequisites for a varied and balanced diet. To ensure the necessary agricultural production, water requirements are in the range of 2,000 to 5,000 l/c/d depending on diet, climatic conditions and efficiency of production systems (WWAP 2006: 247; Molden 2007: 78). Typically, a vegetarian diet can be produced with 2,000 l/c/d, while a Western style diet that is to a great extent based on meat and dairy products requires 5,000 l/c/d. As a very rough estimate, it can be assumed that on average one litre of water is necessary to produce one kcal (Molden 2007: 78).

It has to be kept in mind that these figures do not entirely refer to the amount of irrigation water necessary to produce food. To the contrary, on a global scale most of the water used to produce crops – 80 to 90 percent – is so-called green water, i.e. rain water that is stored in the soil (WWAP 2006: 247; Molden 2007: 58). Only the remaining ten to 20 percent of water used are blue water, i.e. water that is withdrawn from rivers, aquifers, reservoirs or lakes for irrigation purposes (Molden 2007: 58). This amount of irrigation water is referred to when speaking of the 70 percent of total water withdrawals being used in the agricultural sector (WWAP 2006: 247). However, about 45 percent of the gross value of crop production is grown on irrigated land (Molden 2007: 58) highlighting the significance of irrigation for efficient food production. It cannot be determined generally which amount of irrigation water is necessary to produce crops in a given region as the demand for (supplemental) irrigation varies greatly between countries and regions due to climatic and geographic conditions.

In any case, from a human rights perspective, only water use for food production that aims at the realisation of an adequate standard of living is relevant. The aim is to achieve a complete, balanced and healthy diet. This can often be realised with about 2,000 l/c/d. Water use beyond these requirements is not relevant from a human rights perspective as the right to food does not guarantee the immoderate consumption of certain products. Meat-based diets requiring approximately 5,000 l/c/d are therefore not guaranteed by the human right to food. The same holds for example true for the consumption of citrus fruits, strawberries and grapes in the winter season by consumers in the Global North. Such products are produced as cash crops in many countries in the Global South in order to be exported to the Global North where foodstuffs are already available in abundance. Evidently, such production does not relate to the right to food, but rather reinforces the competition over water resources similar to the non- food agricultural production as outlined above.

To summarise, only water use that is necessary to achieve an adequate standard of living, i.e. in the range of 2,000 l/c/d, is relevant for the realisation of the right to food. As outlined above, while many people do not need access to water resources for these purposes, but buy

7 food that is produced by others, subsistence farmers depend on local access to water resources. In order to explore the implications of this dependence from a human rights perspective, the remaining part of the paper will address the State’s obligations regarding the right to food in more detail. A focus will lie on the State’s obligation to fulfil the right to food and the policy options the State has in so far. In this context, the relevance of access to water resources is to be determined.

V) What Obligations do States Bear in Regard to the Right to Food and in how far is Access to Water Relevant? As a concept that is global in scope, the right to food can only provide a broad framework. The CESCR has pointed out in its General Comment on the right to food that “[t]he most appropriate ways and means of implementing the right to adequate food will inevitably vary significantly from one State party to another. Every State will have a margin of discretion in choosing its own approaches, but the Covenant clearly requires that each State party take whatever steps are necessary to ensure that everyone is free from hunger and as soon as possible can enjoy the right to adequate food” (CESRC 1999: Para. 21).

In the following, the paper aims to explore the obligations States bear in regard to the right to food. Special emphasis will be on the question if access to water resources is necessary for the realisation of the right to food. It has become common in human rights research to distinguish several types of States duties. They can be categorised as obligations to respect, to protect and to fulfil (Shue 1980: 52; Craven 1995: 109; Eide 2001: 23 et seq.). The obligation to respect requires States to refrain from interfering with the enjoyment of human rights thus aiming to prevent an infringement of rights that have already been realised (Craven 1995: 109; Eide 2001: 23), while the obligation to protect refers to the duty of States to prevent third parties from interfering with the enjoyment of human rights (Craven 1995: 109; Eide 2001: 24). The latter thus places a duty on States to take the necessary measures including legislation that prevents (powerful) private parties from undermining the rights of others. Finally, the obligation to fulfil requires States to adopt the necessary measures directed towards the full realisation of human rights (Craven 1995: 109; Eide 2001: 24). Primarily, States have the obligation to facilitate access to rights by taking measures to enable and assist people to enjoy their rights. Only as a last resort, when people do not have the means to provide for themselves, the obligation to fulfil turns into an obligation to direct provision (Eide 2001: 24).

The Social Covenant takes account of the fact that the realisation of socio-economic human rights such as the human right to food is highly dependent on the availability of resources, which becomes particularly relevant in regard to the obligation to fulfil. Therefore, States are not obliged to realise the right to food immediately, but progressively, Art. 2(1) of the Social Covenant. However, this does not imply that the realisation of the right to food is left to the discretion of States. Rather, they have to move “as expeditiously and effectively as possible” (CESCR 1990: Para. 9) towards the full realisation of the right to food. The aim to be reached is access to adequate food for all people as described above. This is to be achieved as soon as possible (Riedel 2005: 595; Craven 1995: 131) and the speed by which States can move towards this goal is not being determined by their discretion but by objective standards such as the availability of resources.

Moreover, States bear certain minimum obligations that are not subject to progressive realisation, but have to be realised immediately. The CESCR stated that “that a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party” (CESCR 1990: Para. 10). This minimum core relates to the level of realisation that is indispensable for human survival and dignity. As for 8 the right to food, at least the freedom from hunger as stipulated in Art. 11(2) of the Social Covenant has to be guaranteed immediately as core content. If this were not acknowledged, the right to food would be largely deprived of its raison d’être and its significance as a human right (CESCR 1990: Para. 10). States are assumed to be in the position to meet these minimum requirements. If this if not the case, they have to prove their inability and demonstrate that every possible effort has been made and that all available resources have been used to satisfy these minimum needs as a matter of priority (CESCR 1990: Para. 10).

The paper will continue with the analysis of obligations to respect, to protect and to fulfil in regard to the right to food and the relevance of access to water resources focusing on specific measures to be taken in regard to people relying on subsistence agriculture.

1) Obligation to Respect The obligation to respect refers to the situation of those whose right to food has already been realised. States are required to respect existing access and not to take any measures that would interfere with it (CESCR 1999: Para. 15; FAO 2005: 6; Kent 2005: 105), at least not without providing an alternative access. Accordingly, people who are able to produce or procure their food by their own means, must not be deprived of the space and resource base necessary to do so (Eide 2001a: 142), in particular not of their basis of existence (Reimann 2000: 175).

As outlined above, access to water resources is one of the essential inputs in agricultural production. People who cultivate their own food must therefore not be deprived of the water resources that they need to produce sufficient food stuffs. The State must therefore not pollute these resources (Künnemann 2002: 95) or divert and re-allocate them to different purposes leaving people without the necessary means to produce food.

The diversion of water resources from Southern China and provinces surrounding Beijing to the North of China and Beijing in particular is an example of such a re-allocation on a large scale aiming to satisfy the demand of the increasing population and for urban development. In the context of the Olympic Games the project was accelerated. Farmers in regions from which water is diverted, such as the province of Hebei, bear the disadvantages of the project. The availability of water for agriculture decreases significantly (Watts 2008). When it is no longer sufficient to satisfy the food needs of the population in the region relying on agriculture and the State does not take any measures to allow for an alternative access to food, this amounts to a violation of the State’s obligation to respect the right to adequate food.

2) Obligation to Protect The obligation to protect has a similar aim, but takes action by third parties into consideration. It requires measures to ensure that third parties, i.e. enterprises or other individuals, do not deprive individuals of their access to adequate food (CESCR 1999: Para. 15; FAO 2005: 6). The State therefore has to ensure that third parties do not pollute water resources onto which others rely for food production (Künnemann 2002: 95). The obligation also implies that States must ensure that third parties do not hinder people in their access to water resources.

An example to be considered in this context is the case of Plachimada in India. A company producing beverages had set up a bottling plant in the village and was granted a license to extract ground water. It resulted in the over exploitation of ground water causing water levels to decline. Almost 80 percent of the population in the area depend on agriculture for their livelihood. The over extraction of ground water resulted in their wells running dry so that the lack of water resources severely constrained agricultural production (Koonan 2007: 1 et seq.; Wuppertal Institut für Klima, Umwelt und Energie 2005: 114). When water resources are no

9 longer sufficient to produce adequate food for people relying upon it and people do not have any other means to procure food, this again constitutes a violation of the right to food, in this case of the obligation to protect.

3) Obligation to Fulfil The obligation to fulfil allows for the broadest margin of discretion of States. They have the obligation to fulfil the right to food, i.e. to reach this determined result, but they have wide policy options on how to do so. The right to food does not prescribe particular measures to States.

In order to examine State policies for the realisation of the right to food in more detail, it has to be kept in mind that the individual itself is primarily responsible for the realisation of its right to food taking all measures within his or her capacity (Eide 2001a: 139). Therefore, the State’s primary role is to facilitate access to food by enabling people to provide for themselves and engaging in activities that are intended to strengthen access to resources and allow for their utilisation (CESCR 1999: Para. 15; FAO 2005: 6). General measures in this regard include the promotion of economic development and employment opportunities in order to raise people’s income (FAO 2005: 10; Reimann 2000: 181).

Only when people do not have the means to provide for themselves, i.e. when they can neither produce their own food nor have the means to procure it, the role of the State as direct provider becomes relevant. This is particularly the case for people who are victims of natural or human-made disasters (FAO 2005: 29; CESCR 1999: Para. 15), but also for any other people who are unable, for reasons beyond their control, to realise the right to food by the means at their own disposal (CESCR 1999: Para. 15; Kent 2005: 107 et seq.). In so far, the State has to establish food safety nets aiming to protect those who are unable to provide for themselves (FAO 2005: 25 et seq.; Reimann 2000: 181). The State can either provide direct food aid or provide social assistance that supplies people with the financial means to procure food. As a minimum core obligation the State has to ensure that at least the survival requirements of all people are met.

Overall, the State has to assure that sufficient food is available for procurement at the national level. It can either opt for self-sufficiency by ensuring that sufficient food is produced domestically and accordingly that sufficient water resources are allocated to cultivate agricultural products to supply its entire population or else to import foodstuffs. In particular, countries with limited water availability could decide to import agricultural products that contain a large amount of virtual water (WWAP 2006: 257; Allan 1997). A number of countries, e.g. Egypt and Jordan, do not have the water resources to produce sufficient food domestically (WWAP 2006: 252). States are not obliged to fulfil the right to food with domestically grown food stuffs that require domestic water resources; they can also choose to import food. Moreover, there are great variations to water availability within many countries, e.g. in Brazil and China. In such cases as well food can be produced in distant locations and be transported to people in other areas, so that no local provision of water is required (Gleick 1998: 491). The only requirement is for the State to ensure that sufficient food is available. In general, the State has an array of options on how to fulfil the right to food that do not necessarily require the local provision of water.

However, while this holds generally true, the specific situation of people with hardly any income who do not have access to markets, but instead rely on subsistence agriculture, has to be considered as a special case (Cahill 2005: 396 et seq.) as their situation differs significantly

10 from the one of people living in urban areas as far as their reliance on water resources is concerned.

Agriculture is and will continue to be the key sector for many people living in poverty in rural areas (PEP 2006: 22). It is a source of income generation and many continue to rely on subsistence agriculture for their own food needs. As outlined above, access to water resources is a critical factor in determining the outcome of agricultural activities. The State’s options to fulfil the right to food have to be examined against this background. To consider its options in more detail an example seems helpful: that of a subsistence farmer who relies on rain-fed cultivation as he does not have the means to connect to irrigation systems. Yet, supplemental irrigation would be necessary to produce sufficient food for the family, especially during dry spells.

One option could be to provide supplementary food aid during dry spells. This could be regarded as a viable option to fulfil the right to food as it would ensure access to food. Yet, such measures would disregard that the obligation to provide is subordinated to the obligation to facilitate (Kent 2005: 108; Nuscheler 2006: 265). Whenever possible, the State shall enable and assist people to provide for themselves by engaging in activities that enable people to gain access to resources. This is in line with the underlying principals of human rights, in particular participation and empowerment (CESCR 1999: Para. 23; Moser / Norton 2001: 19). While enabling people to gain access to resources views individuals as active subjects, providing food aid degrades them to mere passive objects of State policy. The provision of food aid can therefore only be an emergency measure. In the long-term, the State must aim to enable people to provide for themselves.

Supporting people in their subsistence farming is a measure with this aim. In cases where the lack of access to water resources is a decisive impeding factor for sufficient food production, facilitating access to water resources would be a means to allow people to cultivate their own food. In the above mentioned example of the subsistence farmer, one aim could thus be the connection to the irrigation system to allow for more reliable access to water.

Yet, the State also has other options in fulfilling the right to food of people who currently rely on subsistence agriculture that are commonly discussed under the broad framework of rural development. Measures could aim at enabling people to gain income from alternative sources. Even if agriculture continues to be the most important sector in rural areas, this is not tantamount to the reliance on subsistence agriculture. Measures can also include the promotion of the growth of cash crops for export in order to earn foreign exchange. In so far, it is of enormous importance that States find a balance between the necessity to earn foreign exchange and the food requirements of their own population. States may also choose to export high-value crops and to import staple foods at the same time. Other possibilities could be specific food for work programmes. In such programmes, food is provided in return for work aiming at rural development, i.e. the construction of streets or canals (Nuscheler 2006: 273). Moreover, State policies could aim at the diversification of the rural economy in order to allow for alternative income opportunities. In any case, the aim is to enable people to get access to resources and make use of them for their realisation of the right to food.

It is beyond the scope of this paper to assess all these policy options with their advantages and disadvantages in detail. This is only to point out that the State has a broad array of options on how to fulfil the right to food – also with regard to people who currently live as subsistence farmers. All these are viable options and the State is not confined to any of these from a human rights perspective. The specific conditions have to be considered in order to find the

11 most appropriate way to fulfil the right to food, such as climatic and geographic conditions, the availability of land as well as the availability of water resources and existing infrastructure, in particular for irrigation (cf. Nuscheler 2006: 265). There is no panacea for the problems related to hunger and malnourishment. The most adequate manner to realise the right to food can only be determined on a case by case basis. Also, facilitating access to water for food production is not always the most adequate solution. For example, in arid regions it might prove difficult to provide access to sufficient water resources due to low water availability and other options to fulfil the right to food might be more appropriate.

However, facilitating access to water resources is an appropriate option in many cases as it enables people to provide for themselves. In so far, the provision of access to water resources is an important means to realise the right to food. But as it is not the only option States have in regard to the fulfilment of the right to food, it cannot be stipulated that there is a specific human right to water for food production.

VI) Conclusion All people have a human right to food which is of fundamental importance for human survival and an adequate standard of living. To produce sufficient food for the realisation of the human right to food a minimum of 2,000 l/c/d is necessary. Therefore, sufficient water resources have to be allocated for agricultural production on a global scale. However, on the local and individual level, the State can choose from a broad array of policy options on how to fulfil the right to food. In particular, food can be produced at distant locations and be transported to the location of consumption so that no local provision of water is necessary. States can also choose to import food from other States.

Yet, the specific situation of people relying on subsistence agriculture has to be taken into account. They often do not have access to food markets and have hardly any income to procure food, but are rather dependent on their own cultivation. In so far, local access to water resources is critical. The State’s primary obligation in regard to the fulfilment of the right to food is to enable people to provide for themselves and to facilitate access to the necessary resources. In order to do so, States can choose from a broad number of policy options including the creation of alternative sources of income by strengthening rural development and providing access to markets. Thus, also in regard to people relying on subsistence agriculture, States are not constrained to providing access to water resources for food production, but also have other options. Rather than stipulating that there is a specific human right to water for food production, access to water resources for subsistence farming is an important means to achieve the realisation of the right to food. The provision of access to water is one option among others – albeit an important one in many cases. Accordingly, there is no individual human right to water for food production.

Author’s Note The author would like to thank Dr. Björn Lüssem, Dr. Lena Partzsch and Anna Zimmer for their very helpful comments on earlier drafts of this paper.

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