Respecting and Protecting the Right to Food: When States Must Get Out of the Kitchen

Lambek, Nadia C. S.

doi:10.1007/978-94-007-7778-1_5

Nadia C. S. Lambek⁵

1560 Accesses

Abstract

One of the benefits of the right to food approach in combating food insecurity is the emphasis it places on the state providing an environment for individuals, and in certain cases communities, to meet their own food needs. This emphasis on creating the space for individuals to meet their food needs is often misunderstood by critics of the right to food. The right to food is often imagined as solely a positive right—with obligations on the state to provide food to the hungry. The right to food encompasses this right—and places corresponding obligations on the state to fulfill the right to food—but like other economic and social rights it contains other state obligations as well. These other obligations in essence derive from negative rights, depicting where and when the state or other third parties must not hinder the ability of individuals to meet their own food needs. This chapter explores these negative rights from a theoretical standpoint as well as through a case study. It argues that addressing the negative rights to food—and the state obligations to respect and protect the right to food—is essential for building sustainable food systems grounded in the promotion of human dignity.

Nadia C.S. Lambek is a former fellow with the Special Rapporteur and the Right to Food. She is grateful to Priscilla Claeys, Jacqueline Solway, Michael Lambek and Lauren Sheffield for their helpful comments on drafts of this chapter. Many of the examples highlighted throughout this piece, and in particular the example the Phulbari coalmine in Bangladesh in Section 3, were brought to the attention of the author during her tenure with the Special Rapporteur. However, all information discussed herein is in the public sphere.

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Notes

1.
See World Food Summit, Rome Declaration and Plan of Action 61, objective 7.4 (1996).
2.
Universal Declaration of Human Rights, G.A. Res. 217A, at 71, U.N. GAOR, 3d Sess., 1st plen. Mtg., U.N. Doc A/10, art. 25 (Dec. 12, 1948) [hereinafter UDHR].
3.
International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A, art. 11 (Dec. 16, 1966), reprinted in 6 I.L.M. 360 (1967) [hereinafter ICESCR].
4.
In the mid-1980s, Philip Alston argued that, “despite the importance attached to the norm, no international agency or organ, whether in the human rights or food field, has ever endeavored to analyze, develop or codify the specific normative implications of the right to food. On the contrary, they have to a significant extent permitted a devaluation of the actual international law norm—the right to adequate food—by the use of surrogate terms purporting to affect international law but which are in fact devoid of any recognized normative content.” Philip Alston, International Law and the Human Right to Food, in The Right to Food 9 (Philip Alston & Katarina Tomasevski eds., 1984).
5.
See U.N. Comm. on Econ., Social and Cultural Rights [CESCR], General Comment No. 12: The Right to Adequate Food, 40–41, U.N. Doc. E/C.12/1999/5 (May 12, 1999) [hereinafter General Comment No. 12].
6.
The World Food Summit: Five Years Later invited the United Nations Food and Agricultural Organization (FAO) Council “to elaborate … a set of Voluntary Guidelines to support Member States’ efforts to achieve the progressive realisation of the right to adequate food”. See World Food Summit, Draft Declaration of the World Food Summit: Five Years Later 10 (2002). At the 127th Session of the FAO Council, these Voluntary Guidelines were adopted. See U.N. Food & Agric. Org. [FAO], Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security (2004). For more information on the negotiations and adoption of the guidelines, see Report of the U.N. Special Rapporteur on the Right to Food, Jean Ziegler, The Right to Food, U.N. Doc. E/CN.4/2005/47, paras. 27–33 (2005).
7.
For example, in India implementation of the right to food has focused on midday meal programs and access to work schemes. See Ministry of Human Resource Development, About the Mid Day Meal Scheme, http://mdm.nic.in/ (last visited Feb. 5, 2013); The Mahatma Gandhi National Rural Employment Guarantee Act 2005 (In.).
8.
See e.g. U.N. Special Rapporteur on the Right to Food Olivier De Schutter, Crisis in Opportunity: Reinforcing Multilateralism A/HRC/12/31 (2009).
9.
Henry J. Steiner, Philp Alston & Ryan Goodman, International Human Rights in Context 275 (2007).
10.
UDHR, supra note 2. The right to food is also protected in a number of other international conventions, from the Convention on the Elimination of All Forms of Discrimination Against Women to the Convention on the Rights of the Child, that have included protections for the right to food. For a lengthy discussion of the many places where the right to food has emerged in international law since the 1940s, see Laura Niada, Hunger and International Law: The Far-Reaching Scope of the Human Right to Food, 22 Conn. J. Int’l. 131, 166–77 (2006) and U.N. Special Rapporteur on the Right to Food, Jean Ziegler, The Right to Food, U.N. Doc. E/CN.4/2001/53, at para. 28 (2001).
11.
ICESCR, supra note 3, at art. 11(1).
12.
Id. at art. 11(2).
13.
Alston, supra note 4, at 32–33.
14.
See id. at 33. For a history of the negotiations that led to drafting of Article 11, see id. at 30–31.
15.
Rolf Künnemann & Sandra Epal-Ratjen, FIAN International, The Right to Food: A Resource Manual for NGOs 51, 56, 58 (2004).
16.
General Comment No. 12, supra note 5, at paras. 6, 14 & 16.
17.
Approximately 80 % of the world’s hungry live in rural areas and half of them are smallholder farmers or peasants. International Fund for Agricultural Development [IFAD], Rural Poverty Report 2011, at 16 (2011); Thomas Hirsch et al., Deepening the Food Crisis? Climate Change, Food Security and the Right to Food, in The Global Food Challenge 79, 84 (2009). Consolidated data prepared by ETC Group suggest that there “are 1.5 billion [peasants] on 380 million farms; 800 million more growing urban gardens; 410 million gathering the hidden harvests of our forests and savannas; 190 million pastoralists and well over 100 million peasant fishers. At least 370 million of these are also indigenous peoples. Together these people make up almost half of the world’s population and they grow at least 70 % of the world’s food.” ETC Group, Who Will Feed Us? Questions for the Food and Climate Crisis 1 (2009).
18.
The vast majority of the world’s undernourished, 852 million out of 870 million, in the period of 2010–2012 resided in the developing world. See U.N. Food & Agric. Org. [FAO], The State of Food Insecurity in the World 2012, 8 (2012).
19.
Hirsch, supra note 17, at 84.
20.
General Comment No. 12, supra note 5.
21.
For application of the respect, protect and fulfill framework to the right to adequate housing, social protection and health, see U.N. Comm. on Econ., Social & Cultural Rights [CESCR], General Comment No. 4: The Right to Adequate Housing (Dec. 13, 1991); U.N. Comm. on Econ., Social & Cultural Rights [CESCR], General Comment No. 19: The Right to Social Security, U.N. Doc. E/C.12/GC/19 (Feb. 4, 2008); U.N. Comm. on Econ., Social & Cultural Rights [CESCR], General Comment No. 14: The Right to the Highest Attainable Standard of Health, U.N. Doc. E/C.12/2000/4 (Aug. 11, 2000).
22.
ECOSOC, Sub-Comm. on Prevention of Discrimination & Prot. of Minorities, The New International Economic Order and the Promotion of Human Rights: Report on the Right to Adequate Food as a Human Right, U.N. Doc. E/CN.4/Sub.2/1987/23 (July 7, 1987) (submitted by Asbjørn Eide).
23.
In addition to substantive provisions, the human right to food, like all economic, social and cultural rights, places procedural requirements on states. These requirements are part of the United Nations Common Understanding on a Human Rights Based Approach and seek to guide the process by which government decision-making is conducted. See United Nations Development Group, Human Rights-Based Approach to Development Programming, http://www.undg.org/?P=221. The basic principles have been summarized by the FAO with the mnemonic PANTHER—Participation, Accountability, Non-discrimination, Transparency, Human dignity, Empowerment and Rule of law. See U.N. Food and Agriculture Organization [FAO], The Right to Food Unit, Guide to Conducting a Right to Food Assessment at Box 2.1 (2009); Lorenzo Cotula, Moussa Djiré & Ringo W. Tenga, The Right to Food and Access to Natural Resources 17 (2008).
24.
General Comment No. 12, supra note 5, at para. 15.
25.
For information on the program, see United States Social Security Administration, Supplemental Nutrition Assistance Program Facts, SSA Publication No. 05–10101, ICN 468655 (May 2012).
26.
For information on the program see, Ministry of Human Resource Development, supra note 7.
27.
General Comment No. 12, supra note 5, at para. 15
28.
The Mahatma Gandhi National Rural Employment Guarantee Act, supra note 7. The Act seeks to enhance the livelihood security of people in rural areas by guaranteeing one hundred days of wage-employment every financial year to each rural household if adult members agree to do unskilled manual work. For more information, see http://nrega.nic.in/netnrega/home.aspx.
29.
Can if Feed Itself? An Expensive Fertilizer Subsidy Delivers a Bumper Harvest—But at What Cost? The Economist (May 1, 2008).
30.
See e.g. Ontario Ministry of Community and Social Services, About Social Assistance in Ontario, http://www.mcss.gov.on.ca/en/mcss/programs/social/ (last visited Feb. 5, 2013).
31.
General Comment No. 12, supra note 5, at para. 15.
32.
U.N. Special Rapporteur on the Right to Food, Olivier De Schutter, What are the Impacts of Agrofuels on the Right to Food? (2012).
33.
Id.; Klaus Deininger & Derek Byrelee, World Bank, Rising Interest in Farmland: Can It Yield Sustainable and Equitable Benefits? 11–12(2010).
34.
See Action Solidaaite Ticas Monde et al., Not One Idle Hectare: Agrofuel Development Sparks Intensified Land Grabbing in Isabela, Philippines (2011).
35.
U.N. Special Rapporteur on the Right to Food, Jean Zeigler, Note to the Secretary-General prepared by Jean Zeigler, The Right to Food U.N. Doc. A/56/201, at para. 27 (2001).
36.
Id. See also United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc. A/RES/61/295 (Sept. 13, 2007), 46 I.L.M. 1013 (2007).
37.
General Comment No. 12, supra note 5, at para. 15.
38.
Zeigler, supra note 35, at para. 28.
39.
For more discussion on this, see Karen Kong, The Right to Food for All: A Right-Based Approach to Hunger and Social Inequality, 32 Suffolk Transnat’l L. Rev. 525, 539–40 (2009).
40.
In a press release concerning violations of the right to food in the Philippines and in Indonesia relating to land-acquisitions for agrofuel production, Olivier De Schutter warned, “Large-scale monocrop developments mean a wholesale shift in land use and land access … All too often, this is to the detriment of existing land users. If the environment they depend upon is repurposed, degraded and placed off limits, their ability to produce or to procure food—and thus their right to food—will be severely threatened.” Olivier De Schutter & S. James Anaya, Agrofuel: UN Rights Experts Raise Alarm on Land Development Mega-Projects (May 23, 2012).
41.
Bangladesh acceded to the ICESCR on October 5, 1998 and is thus duty bound to uphold the right to food as well as the other rights recognized in the Covenant.
42.
United Nations World Food Programme [WFP], Bangladesh Overview, http://www.wfp.org/countries/bangladesh/overview (last visited Feb. 5, 2013).
43.
Id.
44.
Ministry of Agriculture, Government of Peoples Republic of Bangladesh & U.N. Food and Agri. Cul. Org. [FAO], Towards a Food Secure Bangladesh: Country Programming Framework 2010–2015, 3 (2011) [hereinafter Towards a Food Secure Bangladesh].
45.
M. A. Quayum & Amin Muhammad Ali, Adoption and Diffusion of Power Tillers in Bangladesh, 37 Bangladesh J. Agri. Research 307, 308 (2012).
46.
See WFP, supra note 42.
47.
The Asian Human Rights Commission, Right to Food unit documents violations of the right to food in Bangladesh and across Asia. See Asian Human Rights Commission, http://www.humanrights.asia/ (last visited Feb. 5, 2013).
48.
There has historically been significant push back from civilians on the construction of the mine and other energy developments in the country. These push backs came to a head in 2006, when police opened fire on a crowd of between 70,000 and 100,000 protestors, killing 3 and wounding many more. See Anu Muhammad, ADB and the Case of the Phulbari Coal Project, CounterCurrents (2007).
49.
On December 21, 2011, seven United Nations Special Rapporteurs sent a letter to the Government of Bangladesh raising concerns over the likely impacts of the Phulbari coal mine and the possible human rights violations that could ensue as a result of the mine’s construction. The Special Rapporteurs combined concerns indicate the interconnectedness of human rights issues, particularly where they concern economic and social rights. See Joint Allegation Letter, Communication to the Government of Bangladesh, in U.N. Human Rights Council, Communication Report of Special Procedures, U.N. Doc. A/HRC/20/30 (June 15, 2012).
50.
GHD, Phulbari Coal Project, http://www.ghd.com/global/projects/phulbari/ (last visited Feb. 5, 2013).
51.
See Asian Energy Corporation, Environmental Assessment Report, Bangladesh: Phulbari Coal Project, para. 7 (2006).
52.
See generally id.
53.
International Accountability Project [IAP], The Phulbari Coal Project: A Threat to People, Land, and Human Rights in Bangladesh 1 (2002).
54.
Id. at 1.
55.
Joint Allegation Letter, supra note 49.
56.
The construction of the mine may impact 50,000 indigenous people, from 23 different tribal groups. See IAP, supra note 53, at 2.
57.
GCM Resources, Phulbari Coal Project: Resettlement, http://www.gcmplc.com/resettlement (last visited Feb. 5, 2013).
58.
Towards a Food Secure Bangladesh, supra note 44, at 14.
59.
Id.
60.
Id.
61.
See IAP, supra note 53, at 2–3.
62.
Joint Allegation Letter, supra note 49.
63.
Quayum & Ali, supra note 45, at 308.
64.
Id.; Towards a Food Secure Bangladesh, supra note 44, at 12.
65.
Bangladesh is a lowland nation, and flooding is an annual occurrence, which often destroys crops. The location and elevation of the Phulbari region however, means the land is uniquely protected from the elements.
66.
Joint Allegation Letter, supra note 49.
67.
Id.
68.
WFP, supra note 42.
69.
United Nations World Food Programme, 2011 Annual Report Bangladesh 23 (2011).
70.
Id.
71.
United Nations Educational, Scientific and Cultural Organization (UNESCO), The Sundarbans, http://whc.unesco.org/en/list/798 (last visited Dec. 29, 2012).
72.
See Nostromo Research, Phulbari Coal: A Parlous Project 25 (2008), citing Asia Energy Corp., Environmental and Social Impact Assessment (2006).
73.
See e.g. U.N. High Level Task Force on the Global Food Security Crisis, Progress Report April 2008– October 2009 (2009).
74.
Amartya Sen, Poverty and Famines—An Essay on Entitlement and Deprivation (1981).
75.
David Kelley, A Life of One’s Own: Individual Rights and the Welfare State (1998).
76.
Aryeh Neier, Social and Economic Rights: A Critique, 13 Hum. Rts. Brief 1 (2006).
77.
Christian Courtis, The Right to Food as a Justiciable Right: Challenges and Strategies, 11 Max Planck Yearbook of U.N. L. 317, 317–337 (2007); Christophe Golay, The Right to Food and Access to Justice: Examples at the National, Regional and International Levels (FAO Right to Food Unit, 2009); FIAN International, Advancing the Right to Food at the National Level: Some Lessons Learned (2009).
78.
South Africa, High Court, Kenneth George and Others v. Minister of Environmental Affairs & Tourism, Order 2007. For more information on the case, see Olivier De Schutter, Special Rapporteur on the Right to Food, From Charity to Entitlement: Implementing the Right to Food in Southern and Eastern Africa 13–14 (Briefing Note 5, 2012).
79.
Ibrahim Sangor Osman & 1,122 Others v. The Minister of State for Provincial Administration and Internal Security & 10 Others [2011] eKLR, Constitutional Petition No. 2 of 2011, High Court at Embu (Nov. 16, 2011). These individuals and their relatives had occupied the concerned land since the 1940s, initially as grazing land, but beginning in the 1980s as homesteads. The residents were given no written notice of the eviction and the respondents did not obtain a court order or engage in any consultations with the residents.
80.
Id. at 8.
81.
Writ petition (Civil) No. 196 of 2001 (Supreme Court of India). On this case, see in particular Lauren Birchfield & Jessica Corsi, Between Starvation and Globalization: Realizing the Right to Food in India, 31 Mich. I. Int’l L. 691 (2010).
82.
See De Schutter, supra note 78, at 13–14; Brichfield & Corsi, supra note 81.
83.
U.N. Special Rapporteur on the Right to Food, Olivier De Schutter, Agroecology U.N. Doc. A/HRC/16/49 (Dec. 20, 2010).
84.
Hirsch, supra note 17, at 84.
85.
Flavio Luiz Schieck Valente & Ana María Suárez Franco, Human Rights and the Struggle Against Hunger: Laws, Institutions, and Instruments in the Right to Realize the Right to Adequate Food, 13 Yale Hum. Rts. & Dev. L.J. 435, 437 (2010).
86.
This has been well documented, for example, in the case of social protection schemes which ensure people have an adequate standard of living. See generally Magadelna Sepúlveda & Carly Nyst, The Human Rights Approach to Social Protection (2012); Save the Children, A Chance to Grow: How Social Protection Can Tackle Child Malnutrition and Remote Economic Opportunities (2012). See also Olivier De Schutter & Magadelna Sepúlveda, Underwriting the Poor: A Global Fund for Social Protection 1–6 (Briefing Note 7, 2012).
87.
DE SCHUTTER, supra note 78, at 3.

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Nadia C.S. Lambek
Center for Philosophy of Law, University of Louvain, Louvain-la-Neuve, Belgium
Priscilla Claeys
San Francisco, California, USA
Adrienna Wong
Yale Law School, New Haven, Connecticut, USA
Lea Brilmayer

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Lambek, N. (2014). Respecting and Protecting the Right to Food: When States Must Get Out of the Kitchen. In: Lambek, N., Claeys, P., Wong, A., Brilmayer, L. (eds) Rethinking Food Systems. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-7778-1_5

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