1. Characterization of the “right” in the Voluntary Guidelines
· In our discussion of the legal issues, there are many general issues where there are common views and a few important issues of divergence.
· Areas many delegations seem to agree:
o that the Voluntary Guidelines are, by definition, voluntary, that they do not create new obligation on States, and that their drafting should not contain words of legal obligation;
o that these negotiations of the Voluntary Guidelines are not a forum to create new international law, to renegotiate international agreements, or to attempt to forge consensus on differing interpretations of international treaties;
o that statements regarding the obligations of states parties to treaties need to be clearly expressed and should also be clear that such obligations apply with respect to such states parties; and
o that the Voluntary Guidelines should not appear to derogate from existing international treaty obligations.
· These points of convergence, however, contain the seeds of an area of disagreement. That is the circumstance in which countries do not agree on the underlying scope and contours of their obligations under particular treaties.
· As the United States said in its opening comments, countries are unwilling to accept descriptions of international treaties and international law generally with which they disagree. Nor, as a general matter, is it reasonable in a negotiation of a non-binding instrument such as this to expect a country to agree to a description of international law with which it disagrees.
· For this reason, political instruments typically do not attempt to characterize or describe the specific scope of obligations contained in international treaties, but simply take note of them or, where appropriate, quote word-for-word the actual language in the treaty.
o Attempts to characterize the obligations are inherently controversial and counterproductive.
o It is the job of the parties to treaties to determine the content of their obligations in good faith pursuant to international treaty law as set out, under customary international law, in the Vienna Convention on the Law of Treaties.
· Today, speakers have quoted language from General 12 of the Committee of Economic, Social and cultural Rights about what are described as obligations under the ESC Covenant to “respect, protect and fulfill” the right to adequate food.
o This language appears nowhere in the Covenant.
o Nor does the Covenant even provide for the existence of the Committee, much less give it a mandate to issue legally binding or legally authoritative interpretations of its terms.
o The United States has great respect for the Committee and similar Committees established under other human rights treaties. States sometimes agree with interpretations offered by such committees. Sometimes states do not agree, and there is nothing in the ESC Covenant or elsewhere that provides that they are bound to.
· The problem with respect to paragraph 2 in the section The Right to Adequate Food and Food Security is that the United States, a signatory to the ESC Covenant, fundamentally disagrees that the characterization of the right in this paragraph and in General Comment 12 is an accurate description of the rights contained in the ESC Covenant.
o It is inconsistent with the interpretation the United States has consistently applied to the Covenant, which was described at length in treaty materials submitted by former President Jimmy Carter to the U.S. Senate.
o In the interest of time, we will not engage in a substantive legal discussion of those differences of view.
· As a final matter, I would like to explain why my government cares to deeply about this issue, even though it has not ratified the ESC Covenant.
o First, the United States is a signatory, and signatories have certain responsibilities under international treaty law.
o Second, the precedent of citing non-binding General Comments as authoritative law could have applications in settings in which the United States is a party.
· I apologize for the length of these remarks, but it is a complicated issue. What is the solution to the problem?
o Some delegations have expressed concerns that the characterizations of the right in the Guidelines exaggerate the right while others are concerned that the description might restrictively interpret the ESC Covenant.
o The way to avoid this problem is the way found in all such negotiations- to avoid characterizations and cite the actual language of the instrument in question.
2. Justiciability of, and third party responsibilities relating to, the progressive realization of the right to adequate food
· On the Issues of justiciability, as described above we do not believe that the right to food is justiciable under the International Covenant on Economic, Social and Cultural Rights or other instruments of international law.
o Research circulated by the FAO Secretariat indicates that there is a very wide array of methods for countries under national laws to deal with providing access to food.
o Some countries may chose to create a right; some may not.
o Even among those that have a right under national law, many do not create a right for individuals to bring lawsuits against their government for enforcing such rights.
o It is this private right to bring lawsuits, which is what is typically meant by those arguing for the creation of a “justiciable” right.
· For similar reasons, we do not agree with the ESC Committee’s General Comment 12 that countries have an obligation to “fulfill” or “provide” a right to adequate food to persons in their territory.
· Regarding third parties, we do not agree there is a formal international legal obligation to “protect” the progressive realization of the right to adequate food.
o Thus, actions against private actors are not provided for in the ICESCR or otherwise in international law.
o We would not want to include language on this subject in the Voluntary Guidelines.