11 Regional Protection of the Right to Food

Prof. Rehan Abeyratne

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Introduction

The right to food is a human right that is protected in the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 11 of the ICESCR declares the right to food as part of the right to an adequate standard living. The right to food is also protected by human rights frameworks in different regions that reinforce the ICESCR by monitoring and enforcing economic, social and cultural rights at a regional level.

This module will introduce students to the three main regional human rights frameworks – the Inter-American, African, and European – that enforce the right to food. It will also look at specific cases from each region and compare their various approaches.

Learning Outcomes:

After completing this module, students should know and understand:

  • The right to food under the Inter-American human rights system The right to food under the African human rights framework
  • The right to food in Europe

I. The Right to Food in the Inter-American Human Rights System

The American region was the first to recognize the right to food, albeit in slightly different form. In 1948, prior to the announcement of the UDHR, the Ninth International Conference of American States set forth the American Declaration of the Rights and Duties of Man. Like the UDHR, the American Declaration was not legally binding at first, but it has come to be interpreted as containing enforceable obligations against the members of the Organization of American States (OAS). All 35 independent countries of the Americas (North, Central, and South America) are members of OAS and are therefore bound by the provisions of the American Declaration. Article XI protects a right to food within a broader right to health. It provides, “Every person has the right to the preservation of his health through sanitary and social measures relating to food, clothing, housing and medical care, to the extent permitted by public and community resources.” This is an interesting provision, as it recognizes the interconnectedness of various rights, tying health to adequate food, clothing, housing and medical care. The benefit of this formulation is that each of these rights reinforces the others as part of an indivisible, interdependent scheme. As a result, it appears to protect not only a right to the adequate quantity of food but to adequate levels of nutrition as well, since proper nutrition is vital to the right to health. The American Convention on Human Rights (1969) builds on the American Declaration by providing in Article 26 that states must work towards the “Progressive Realization”, requires states to undertake to adopt measures towards the full realization of “economic, social, educational, scientific, and cultural standards” set forth in the OAS Charter. The Convention is a binding instrument that requires ratification before obligations can be imposed on state parties. It has 25 state parties, but several countries, including the United States and Canada, have not ratified it.

The Protocol of San Salvador to the American Convention provides the most comprehensive protection of economic, social and cultural rights. It protects a full range of rights including the rights to work, health, education and social security. It has been ratified by 16 states and came into force in 1999. Article 12(1) of the Protocol states, “Everyone has the right to adequate nutrition which guarantees the possibility of enjoying the highest level of physical, emotional and intellectual development.” Thus, drawing on the American Declaration, the right to food is defined in nutritional terms. Article 12(2) goes further by requiring states to work towards eradicating malnutrition by undertaking to improve “methods of production, supply, and distribution of food, and to this end, agree to promote greater international cooperation in support of the relevant national policies.”

The primary enforcement mechanisms in this regional framework are the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. The Commission is charged with monitoring the human rights situation in each OAS country and investigating individual petitions alleging human rights violations. The Court can It can hear cases filed by member states or referred by the Inter-American Commission on Human Rights as well as issue advisory opinions on the interpretation of OAS legal instruments and the human rights implications of domestic laws.

A recent case illustrates how the right to food is enforced in the Inter-American system. In the Case of the Indigenous Community Yakye Axa v. Paraguay (2005), a Paraguayan indigenous community filed a complaint with the Inter-American Commission on Human Rights (IACHR) alleging that Paraguay had failed to acknowledge its right to property over ancestral land. The Commission decided that the case was admissible and referred it to the Inter-American Court of Human Rights.

The Court noted that Paraguay had failed to adopt adequate measures to ensure its domestic law guaranteed the community’s effective use and enjoyment of their traditional land. This threatened the free development and transmission of the community’s culture and traditional practices. The Court concluded that Paraguay had violated the rights to property and court protection, as well as the right to life, since it had prevented the community from access to its traditional means of livelihood.

The Court also looked into the state’s failure to adopt necessary measures to ensure the community lived under dignified conditions during the period they were denied their land. In this period, the community lacked adequate access to food, health services, and education, leading to the deaths of sixteen people.

The Court concluded that the state was obligated to adopt positive measures towards a dignified life, particularly when high risk, vulnerable groups were at stake, whose protection became a priority. It ordered the state to demarcate the traditional land, to submit it to the community at no cost, and to provide basic goods and services necessary for the community to survive until they recovered their land.

This case is significant because of the breadth of the Inter-American Court judgment. The Court relied on the Protocol of San Salvador to interpret the right to life taking into account health, education and food needs. It stated, “One of the obligations that the State must inescapably undertake as guarantor, to protect and ensure the right to life, is that of generating minimum living conditions that are compatible with the dignity of the human person and of not creating conditions that hinder or impede it. In this regard, the State has the duty to take positive, concrete measures geared toward fulfillment of the right to a decent life, especially in the case of persons who are vulnerable and at risk, whose care becomes a high priority.”

II. The African Human Rights Framework on the Right to Food

In the African region, the primary international human rights instrument is the African Charter on Human and Peoples’ Rights (1981). 53 African states have ratified the Charter, which includes every country in the continent except South Sudan. The Charter does not contain any provision specifically protecting the right to food. However, as we will see, the African Commission of Human and Peoples’ Rights has declared that the Charter protects an implicit right to food.

As in the Americas, the African framework has a dual enforcement structure. The African Commission on Human and Peoples’ Rights is empowered to receive and examine reports from state parties on their compliance with the Charter’s obligations. The African Court of Human and People’s Rights, meanwhile, has the power to issue binding judgments against member states. The Court was created through the Protocol to the African Charter (2004). 27 of the 54 African states have ratified the Protocol and are therefore subject to the jurisdiction of the Court. Thus, the Court has no jurisdiction over half of African states.

In Social and Economic Rights Action Center & the Center for Economic and Social Rights v. Nigeria (2001), the African Commission on Human Rights issued an important judgment on the requirements of the African Charter with respect to the right to food. The case arose from a communication sent to the African Commission by two NGOs against the Nigerian military government. It alleged that the government had violated various rights under the African Charter by allowing foreign oil corporations to operate in the region of Ogoniland.

The Commission held that the Ogoni people had suffered several violations of their human rights, including the right to health (art. 16), the right to a satisfactory environment (art. 24), and the right of peoples to freely dispose of their wealth and natural resources (art. 21). The Commission also held that the Nigerian government violated the implied right to housing and, importantly for our purposes, an implied right to food. The Communication showed that there were widespread destruction and contamination of Ogoni crops by both government and non-state actors. The Commission held that these acts violated the right to food, which is protected by the African Charter, as it is “inseparably linked to the dignity of human beings and is therefore essential for the enjoyment and fulfillment of such other rights as health, education, work and political participation.”

The Commission ordered the Nigerian government to take several measures to compensate victims. This included ensuring that victims receive adequate compensation, the cleanup of land damaged by oil operations. This case is significant in that it not only declared an implicit right to food under the African Charter, enforceable against African states, but held that governments must protect citizens against private acts that endanger this and other rights.

III. The Right to Food in Europe

The European Convention on Human Rights (ECHR) is the main human rights treaty in Europe. It only protects civil and political rights. However, the European Social Charter (adopted in 1961, revised in 1996) offers comprehensive economic, social and cultural rights protection to citizens of member states. The Charter has been ratified by 43 out of 47 members of the Council of Europe. Part II of the Charter sets forth a range of rights with which member states must abide. These include various rights of workers (inter alia to equal pay, safe and healthy working conditions, and collective bargaining), the right to housing, and the right to protection against poverty and social exclusion (art. 30). The Charter does not explicitly contain a right to food, but such a right can be inferred through Article 30, which provides that states must take measures “to promote the effective access of persons who live or risk living in a situation of social exclusion or poverty, as well as their families, to, in particular, employment, housing, training, education, culture and social and medical assistance.” This provision is phrased as a non-exhaustive list, meaning that food deprivation resulting in poverty appears to be covered within it.

Switzerland is one of the few European states that is neither a party to the European Convention on Human Rights nor the European Social Charter. Nonetheless, it provides robust human rights protection at the domestic level, including enforcement of the right to food. The case V. v. Einwohnergemeinde X. und Regierungsrat des Kantons Bern (1995) involved three Czechs, who were residing in Switzerland illegally.16 They had been expelled from Switzerland for committing criminal offenses, and returned with no papers, food, or means of subsistence and were denied social welfare by the state. They challenged this denial before the Swiss Federal Court – the highest court in Switzerland.

The Court held that this denial of social welfare violated an implied constitutional right to a social minimum or basic level of subsistence. According to the Court, this basic right was essential for the exercise of other, enumerated constitutional rights such as the rights to life, human dignity, and equality. The Court further held that this right applied to both Swiss citizens and foreigners because it is a fundamental human right that applies to all human beings by virtue of their common human dignity. It, therefore, reaffirmed the interconnectedness of civil and political rights with economic, social and cultural rights, recognizing that a life of human dignity cannot be pursued without basic needs being met.

Following this decision, the Swiss Constitution was revised in 2000 to provide for a right to aid in distress. Article 12 of the Constitution now states, “Whoever is in distress without the ability to take care of himself or herself has the right to help and assistance and to the means indispensable for a life led in human dignity.”

Summary

The right to food is a human right protected under Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). It is also protected at the regional level in the Americas, Africa, and Europe. Though each region varies in the protection afforded to this right, they all recognize, explicitly or implicitly, that the right to food is part of an indivisible and interdependent scheme of rights that must be enforced in concert.

The Inter-American System protects the right to food in various ways. The American Declaration on the Rights and Duties of Man – a non-binding instrument – includes adequate food as part of the right to health in Article XI. This shows how food security is tied to health and implies that the right to food means adequate nutrition in addition to adequate quantities of food. This is reinforced by the American Convention on Human Rights, particularly the Protocol of San Salvador, which sets forth a legally binding right to adequate nutrition and calls on states to eradicate malnutrition by improving their production, supply, and distribution of food. In the Case of the Indigenous Community Yakye Axa v. Paraguay (2005), the Inter-American Court of Human Rights relied on the Protocol of San Salvador to order the state of Paraguay to provide an indigenous community that had been removed from its land with basic goods and services necessary for the community to survive until their land was returned.

In Africa, the African Charter on Human and Peoples’ Rights (1981) is the primary human rights instrument. While it contains binding obligations and has been ratified by 53 out of 54 African states, it does not contain an explicit right to food provision. However, in Social and Economic Rights Action Center & the Center for Economic and Social Rights v. Nigeria (2001), the African Commission on Human Rights concluded that the right to food is implied in the African Charter. The case arose out of  an NGO communication to the Commission alleging that the Nigerian government had allowed and assisted in a range of human rights violations committed by oil companies against the Ogoni people. The Commission found violations of Article 16 (right to health), Article 24 (the right to a satisfactory environment) and Article 21 (the right of peoples to freely dispose of their wealth and natural resources). The Commission also found that there were widespread destruction and contamination of Ogoni crops by both government and non-state actors. It concluded that these acts violated an implied right to food of the Ogoni people, which derives from human dignity and is linked to enumerated rights such as the right to health and right to work. In so doing, it also held that states must protect citizens from violations of the right to food (and other rights) committed by private parties.

In Europe, while the European Convention on Human Rights (ECHR) does not protect economic, social and cultural rights, these rights are protected by the European Social Charter. Art. 30 of the Charter establishes the right to protection against poverty and social exclusion, which implicitly protects a right to food. Switzerland, which is not a member of the European Union or a party to the European Social Charter, provides even more robust protection of the right to food. In V. v. Einwohnergemeinde X. und Regierungsrat des Kantons Bern, the Swiss Federal Court held that even illegal residents of Switzerland are entitled to a basic level of subsistence. It stated that this right is implied within other enumerated rights such as the rights to life, human dignity, and equality. Moreover, the Court held that this is a fundamental human right that applies to all persons, even illegal residents, and non-Swiss citizens. The Swiss Constitution was revised in 2000 to include, under Article 12, a right to aid in distress.

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Reference

  • Organization of American States, Member States, available at: http://www.oas.org/en/about/member_states.asp/.
  • Inter-American Commission on Human Rights, American Convention on Human Rights, available at: https://www.cidh.oas.org/Basicos/English/Basic4.Amer.Conv.Ratif.htm.
  • Organization of American States, Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights: Signatories and Ratifications, available at: http://www.oas.org/juridico/english/sigs/a-52.html/
  • Yakye Axa indigenous community of the Enxet-Lengua people v. Paraguay, Case 12.313, Report No. 2/02, Inter-Am. C.H.R., Doc. 5 rev. 1 at 387 (2002).
  • Case of the Yakye Axa Indigenous Community v. Paraguay, Case Summary, available at: http://www.escr-net.org/docs/i/405985.
  • Case of the Yakye Axa Indigenous Community v. Paraguay, Judgment of June 17, 2005, Inter-Am. H.R. (2005), paras. 221, 233-34.
  • African Commission on Human and Peoples’ Rights, African Charter on Human and Peoples’ Rights, available at: http://www.achpr.org/instruments/achpr/#a17.
  • Social and Economic Rights Action Center & the Center for Economic and Social Rights v. Nigeria Communication No. 155/96, Case Summary, available at: http://www.escr-net.org/docs/i/404115.
  • Social and Economic Rights Action Center & the Center for Economic and Social Rights v. Nigeria, Communication No. 155/96, African Commission on Human and Peoples’ Rights (2001).
  • 1 Council of Europe, Member States of the Council of Europe and the European Social Charter, available at: http://www.coe.int/t/dghl/monitoring/socialcharter/Presentation/Overview_en.asp.
  • V v. Einwohrnergemeine X und Regierungsrat des Kanton Bern, Swiss Federal Court (Tribunal fédéral suisse), BGE/ATF 121 I 367 (1995).
  • V v. Einwohrnergemeine X und Regierungsrat des Kanton Bern, Case Summary, available at: http://www.escr-net.org/docs/i/401055.