Rights expert charts progress on right to food

Recognition of the right to food is key to combating hunger and food insecurity, says a UN rights expert.

by Kanaga Raja

GENEVA: In his final report to the UN General Assembly, the UN Special Rapporteur on the Right to Food, Olivier De Schutter, has highlighted an “emerging global right to food movement”, focused over the past 10 years on the practical aspects of realizing the right to adequate food through appropriate legal, policy and institutional frameworks.

In his report, the Special Rapporteur stressed that the emergence of such a global right to food movement is an opportunity to be seized.

“Together with the adoption of framework laws on the right to food and of rights-based national food strategies, it represents a chance to move towards policies that are designed in a more participatory fashion and therefore better informed and reach all intended beneficiaries; that guarantee legal entitlements and are therefore monitored by the beneficiaries themselves; that ensure the appropriate coordination and synergies – between the short-term aim of eradicating hunger and the long-term objective of removing its causes, between different sectors of government, and between the local and the national levels.”

After serving six years as Special Rapporteur, De Schutter’s final report takes stock of important progress made since the 1996 World Food Summit, highlighting emerging best practices and the role of key actors: governments, parliaments, courts, national human rights institutions, civil society organizations and social movements.

“The right to food has come to the fore as Governments realize that their efforts to combat food insecurity and hunger have been failing and realize the urgent need to strengthen national legal, institutional and policy frameworks,” he said.

The report was based on expert meetings convened by the Special Rapporteur to assess progress made in Latin America and the Caribbean, Eastern and Central Africa, and West Africa, as well as 11 country visits that he undertook since the beginning of his mandate.

The Special Rapporteur said he further benefited from replies to a questionnaire sent on 5 February 2013 to all United Nations member states.

Operational tool

In his report, De Schutter noted that at the time of the adoption of the International Covenant on Economic, Social and Cultural Rights, the right to food was more than a symbol, but hardly more than an aspiration.

“It has now become an operational tool and widely recognized as a key to the success of food security strategies.”

According to the Special Rapporteur, the right to food has more to do with modes of production and issues of distribution than with levels of food production alone.

“It primarily aims to guarantee to each person, individually or as part of a group, permanent and secure access to diets that are adequate from the nutritional point of view, sustainably produced and culturally acceptable. Such access can be ensured through three channels that often operate in combination: (a) self-production; (b) access to income-generating activities; and (c) social protection, whether informally through community support or through State-administered redistributive mechanisms.”

As such, De Schutter added, depending on the population concerned, the right to food is closely related to the right of access to resources such as land, water, forests and seeds, that are essential to those who produce food for their own consumption; the right to work, guaranteed under Article 6 of the International Covenant on Economic, Social and Cultural Rights; and the right to social security, protected under Article 9 of the Covenant.

The contribution of the right to adequate food to the eradication of hunger and malnutrition operates at three levels, said De Schutter.

First, as a self-standing right recognized in international law and in a range of domestic constitutions, it imposes on states obligations to respect, protect and fulfil the right to adequate food.

Second, the right to food encourages the transformation into legal entitlements of social welfare benefits that individuals or households receive under governmental food security schemes.

Third, the right to food requires that states adopt national strategies to progressively realize the components of the right to food that cannot be immediately guaranteed.

“The significant progress achieved at each of these levels in recent years has been brought about by the interplay of different actors, including courts, parliaments, governments, national human rights institutions, civil society and social movements.”

The report underlined that the right to food is increasingly stipulated in domestic constitutions, as recommended by Guideline 7 of the Right to Food Guidelines.

For example, in 1994, South Africa included the right to food in Article 27 of the post-apartheid Constitution. Other countries have followed suit. The new Constitution of Kenya, approved by a popular referendum in 2010, states the right of every person “to be free from hunger and to have adequate food of acceptable quality”; like that of South Africa, the Constitution imposes on the state a duty to respect, protect, promote and fulfil that right.

A 2011 study identified 24 states in which the right to food was explicitly recognized, although in about half of them, it was recognized for the benefit of a particular segment of the population only, such as children, and sometimes through another human right such as the right to life.

Since that study was completed, Articles 4 and 27 of the Constitution of Mexico were amended in order to insert the right to food. In El Salvador, Nigeria and Zambia, processes of constitutional revision are under way that may lead to insertion of the right to food in the respective Constitutions.

In other countries, such as Uganda and Malawi, ensuring access to adequate food and nutrition is defined as a principle of state policy.

These are not symbolic advances, De Schutter stressed, noting that victims of violations are entitled to “adequate reparation, which may take the form of restitution, compensation, satisfaction or guarantees of non-repetition”.

“The recognition of the right to food in domestic law empowers courts or other independent monitoring bodies to impose compliance with the obligations of the State to respect, to protect and to fulfil the right to food. Significant progress has been made in this regard in recent years.”

State obligations

According to the report, the obligation to respect requires that the state refrain from interfering with the existing levels of enjoyment of the right to food and that it guarantee existing entitlements, for instance, by ensuring that those who produce their own food be secure in their access to the resources, including land and water, on which they depend, or by ensuring that those who could have access to income-generating activities allowing them to purchase food are not denied such access.

Courts are generally well-equipped to enforce this obligation, said De Schutter, citing several rulings in this regard. For example, he noted that the High Court of South Africa ordered a revision of the Marine Living Resources Act, requiring the development of a new framework taking into account “international and national legal obligations and policy directives to accommodate the socioeconomic rights of [small-scale] fishers and to ensure equitable access to marine resources for those fishers”. This resulted in the adoption of a new Small-Scale Fisheries Policy in May 2012, which recognizes the importance of small-scale fisheries in contributing to food security and as serving as a critical safety net against poverty.

In Honduras, the Sectional Court of Appeal in San Pedro Sula granted a constitutional remedy in the Brisas del Bejuco case in order to prevent the eviction of a group of small-scale farmers, referring to the obligation of the state to protect the right to food under the International Covenant on Economic, Social and Cultural Rights.

The African Commission on Human and Peoples’ Rights has protected the resources on which the Ogoni people depend for their livelihoods against the damage caused by oil companies operating on their territories, a position reaffirmed in 2012 by the Court of Justice of the Economic Community of West African States.

“In all these cases, courts or quasi-judicial bodies have protected the right to food by prohibiting actions that would undermine the ability of individuals and communities to produce their own food,” said the Special Rapporteur.

According to the report, the obligation to protect requires that the state protect individuals’ enjoyment of the right to food against violations by third parties (namely, by other individuals or groups or private enterprises), including by establishing an adequate regulatory framework.

Courts too may play a role by intervening where private actors violate the right to food. For instance, in a case on which the Special Rapporteur said he wrote a letter of allegation, the High Court of Uganda at Kampala ordered on 28 March 2013 that compensation be paid to 2,041 individuals who had been evicted from their land in August 2001, when the government of Uganda gave the land to a German company to establish a coffee plantation.

On the question of the obligation to fulfil, De Schutter noted that it is sometimes believed that, owing to the fact that certain dimensions of the right to adequate food can be realized only progressively, courts have no role to play in adjudicating claims concerning the alleged insufficiency of measures adopted by the state to discharge this third-level obligation.

“This betrays a fundamental misunderstanding about the notion of progressive realization. Progressive realization is the opposite of passivity. It requires immediate steps that are deliberate, concrete and targeted and that aim to ‘move as expeditiously and effectively as possible’ towards the full realization of economic, social and cultural rights,” he said.

The Special Rapporteur pointed out that in situations of natural disaster or conflict, or “whenever an individual or group is unable, for reasons beyond their control, to enjoy the right to adequate food by the means at their disposal, States have the obligation to fulfil (provide) that right directly”.

This component of the right to food has been invoked successfully before courts in recent years. In Nepal, the Supreme Court issued an interim order in 2008 for the immediate provision of food in a number of districts that food distribution programmes were not reaching, confirming and extending its initial order on 19 May 2010.

In May 2013, a juvenile court in Guatemala ordered 10 government institutions to adopt a set of 26 specific measures to compensate damages caused to five children in two villages of Camotan, who were left malnourished as a result of the state’s failure to provide support. The order was based on the 2005 Food and Nutrition Security Law and Guatemala’s obligations under the International Covenant on Economic, Social and Cultural Rights.

“Where the situation of individuals or communities is so desperate as to condemn them to hunger unless they are given support, courts routinely have relied on the right to life to impose such obligations to provide,” said the report.

Despite the significant progress made in recent years, some dimensions of the right to food remain underdeveloped.

This is especially the case as regards its extraterritorial dimensions, said De Schutter, adding that “the mechanisms allowing victims of violations of the right to food in extraterritorial situations are often non-existent or hardly accessible in practice”.

Legal entitlements

According to the report, policies aimed at eradicating hunger and malnutrition that are grounded in the right to food shall redefine as legal entitlements benefits that have traditionally been seen as voluntary handouts from states.

The right to food requires that schemes providing benefits, whether guaranteeing access to food or promoting agricultural and rural development and national social protection floors, be consolidated into legal entitlements, clearly identifying the beneficiaries and providing them with access to redress mechanisms if they are excluded.

Courts may contribute to strengthening benefits into legal entitlements, said De Schutter, citing, for example, that following the filing of a public interest litigation petition, the Supreme Court of India derived from the right to life mentioned in Article 21 of the Constitution a series of requirements articulating how various social programmes should be expanded and implemented in order to ensure that the population is guaranteed a basic nutritional floor.

“This is to this date the most spectacular case of a court protecting the right to food,” said the Special Rapporteur.

He noted that the Court prohibited the withdrawal of the benefits provided under existing schemes, including feeding programmes for infants, pregnant and nursing mothers and adolescent girls; midday school meal programmes; pensions for the aged; and a cash-for-work programme for the able-bodied, thus converting such benefits into legal entitlements.

Moreover, the Court expanded on and strengthened existing schemes, to ensure that they provide effective protection against hunger. For instance, it ordered that school meals be locally produced and be cooked and hot, whereas in the past children were fed with dry snacks or grain, and that preference be given, in the hiring of cooks, to Dalit women; it raised the level of old-age pensions; and, consistent with the idea that the schemes implement a constitutional right, it ordered their universalization, significantly expanding the number of beneficiaries.

To supervise the implementation of its orders, the Court also established two independent Commissioners to monitor the implementation of programmes fulfilling the right to food throughout the country.

Providing a legal framework to public programmes that aim to ensure food security may strengthen these programmes and ensure that they are maintained across time. The recent developments following the “right to food case” in India provide an example, said the rights expert.

On 5 July 2013, he noted, the government adopted the National Food Security Ordinance, based on a legislative bill initially tabled in 2011. This new legislation is aimed at ensuring access to food throughout the life cycle for two-thirds of the population of India through a combination of a variety of program-mes that will henceforth be considered legal entitlements, making their removal unlikely even if political winds change.

Further noting that the National Food Security Ordinance could be further improved, De Schutter said: “The Ordinance nevertheless provides an example of a food security law that defines as legal entitlements a large range of benefits that are aimed at ensuring that people are not denied access to food simply because they are poor, and establishes a set of accountability mechanisms at different levels.”

Although “remarkable”, the example is of course not isolated, he said, adding that in fact, in most countries, social protection schemes and support to food producers are provided for in the law, and lack of implementation can be remedied by courts.

“Latin America has been leading the movement towards the adoption of framework laws in support of the realization of the right to food. Food and nutrition security laws grounded in the right to food have been adopted in rapid succession in Argentina (2003), Guatemala (2005), Ecuador (2006 and 2009), Brazil (2006), Venezuela (2008), Colombia (2009), Nicaragua (2009) and Honduras (2011).”

Similar laws are currently being considered in Bolivia, Costa Rica, the Dominican Republic, El Salvador, Haiti, Panama, Paraguay and Peru.

“The remarkable progress achieved over the past decade in Latin America is the result of the combined efforts of civil society, social movements, parliamentarians and national human rights institutions,” said De Schutter, adding that the dedication of parliamentarians is particularly noteworthy.

Progress is being made on this front in other regions as well. In Malawi, for example, a proposal was made by civil society organizations in 2010 for a national food security bill. In Mozambique, the Technical Secretariat for Food and Nutritional Security, an inter-ministerial coordination body, led an inclusive process to the same effect.

In Uganda, the Nutrition Action Plan 2011-2016 mentions the need to fast-track the adoption of the Food and Nutrition Bill, which should lead to the adoption of a Food and Nutrition Council. Senegal and Mali, in 2004 and 2006 respectively, adopted framework laws that are centred on the establishment of agricultural policies, allowing farmers’ organizations to contribute to the design of such policies.

In Indonesia, a Food Law (18/2012) was passed in November 2012 where the right to food, food sovereignty and food self-sufficiency are important pillars; a national food security agency should be established before 2015.

Ingredients of success

“The increasing recognition of the importance of a legal and policy framework grounded in the right to food reflects a growing understanding that hunger is not simply a problem of supply and demand, but primarily a problem of a lack of access to productive resources such as land and water for small-scale food producers; limited economic opportunities for the poor, including through employment in the formal sector; a failure to guarantee living wages to all those who rely on waged employment to buy their food; and gaps in social protection.”

De Schutter said that the remarkable success of Brazil in reducing child malnutrition rates over the past 15 years bears witness to the power of strategies such as “Zero Hunger” and participatory approaches.

Beyond that example, the report said that recent research shows that countries that have made significant progress in reducing malnutrition present a number of common characteristics:

(1) they sought to adopt a multi-sectoral approach to combating hunger and malnutrition;

(2) in almost all cases, the political impetus at the highest level of government was a key factor;

(3) civil society participation and empowerment were essential, contributing to the sustainability of policies across time and improving their acceptance and impact among affected populations;

(4) multi-phased approaches were the most effective, as allowed by multi-year national strategies combining both short-term interventions and long-term approaches to nutrition;

(5) the establishment of institutions monitoring progress ensured that the political pressure remained present throughout the implementation phase of the strategy and that the resources were committed;

(6) the continuity of financial investment from national resources, supplemented with external matching funds, was vital: one-time efforts, over short periods, failed to achieve significant impact.

These are the ingredients of success that approaches grounded in the right to food provide, said the rights expert, adding that all branches of government – legislative, executive and judiciary – have a responsibility to contribute to this implementation.

As illustrated by the range of examples, he said, the protection of the right to food requires a legislative framework, policies implementing food security strategies, and enforcement through judicial means.

Yet, even that may not suffice. Various veto points may make it difficult for political systems to create the requisite conditions for accountability. The poor are often a constituency that matters less to politicians. The poor may experience considerable difficulties in accessing judicial redress mechanisms, which is why social audits matter.

The role of other actors, national human rights institutions and civil society, is therefore essential, De Schutter concluded. (SUNS7690)

Third World Economics, Issue No. 557, 16-30 Nov 2013, pp5-7