Hunger in Court in Latin America

8/8/2019 Hunger in Court in Latin America

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According to the specic clauses in the International Con-vention on Economic, Social and Cultural Rights (ICESCR),states have the obligation to progressively apply the rightto adequate food by providing increasingly more resourcesand not allowing any kind of decline in the levels alreadyreached. In other words, they should not reduce the amountof beneciaries of food programmes without a strong causeor allocate less money each year to programmes forghting hunger. To achieve this, they must adopt measures

individually or with the help of international developmentaid and use all the resources available (with budget alloca-tion as a priority) via all possible channels.

The Committee for Economic, Social and Cultural Rights(CESCR) has observed that the phrase to the maximum ofits available resources, featured in the ICESCR, intended,according to those who wrote the Convention, to refer bothto existing resources within a state and those that the inter-national community makes available to it through coopera-tion and international aid. In a similar way, CESCR under-lines the fact that, even in times of serious limitations onfunding caused by adjustments, an economic recession or

other factors, societys most vulnerable members can andshould be protected through the adoption of programmesthat cost relatively little (United Nations, 1990).

Pushing the Right to Food in Latin America forward: Governments, legislative assemblies andcivil societyOf the national tools that allow the right to food to be up-held, the two most frequently used and which have beenmost thoroughly developed in the region are the adoptionof national food security policies or strategies and theenactment of laws that regulate the institutional frame-

work for ghting against hunger (Vivero and Ramrez,2009a). Both options, adopting legislative measures andnational food security policies, are constantly repeated inthe different documents related to implementing the rightto food, beginning with the ICESCR (United Nations, 1990,1998, 1999, 2000). CESCR recognises that legislative mea-sures are highly desirable in many cases, and in some mayeven be essential.

affects 53 million people, according to FAOs latest gures (2009b).

In this sense, Latin America is the region that has mademost progress in terms of legal frameworks that promoteand protect the right to food; seven countries already havespecic laws relating to this subject and another ten havebills pending currently under discussion in National Assem-blies (Vivero and Monterroso, 2008). Another issue that isbecoming increasingly more relevant is the monitoring andawareness-raising work on the right to food, for which several countries already have annual monitoring reports pro

duced by both civil society organisations (CSOs) and humanrights institutions such as procuraduras6 and defensorasdel pueblo (ombudsmen)7.

The constitutions of several Latin American and Caribbeancountries explicitly recognise or refer to the right toadequate food (Brazil, Colombia, Cuba, Ecuador, Guate-mala, Haiti, Nicaragua and Paraguay), although there arecountries where the responsibility for food is limited tovulnerable groups (children, elders). In other countries,the childrens parents and not the state are responsible forguaranteeing this right (Vivero and Ramrez, 2009b).

Even though only the states are parties to these bindinginternational treaties, all members of society are respon-sible for upholding the right to food; it is not the exclusiveresponsibility of governments. NGOs and CSOs have a veryimportant international, national and local role to play, especially in terms of awareness-raising, training and the de-velopment of justiciability. On an international scale, manyNGOs have made the right to food one of the focal pointsof their campaigns: ActionAid with HungerFree8, FIAN International and its campaign Face it, Act now9, and Prosalus, Critas and Engineers without Borders (Spain) with thecampaign Derecho a la Alimentacin Urgente (The UrgentRight to Food)10. Some participate in CESCR sessions and on

other human rights forums regularly, placing themselves atthe forefront of awareness-raising and monitoring. Thesegroups are also very active in keeping the right to food onthe agendas of international development and food secu-rity events.

At national level, NGOs are key actors in promoting thefullment of this right through their pressure and advocacyactivities, preparing national monitoring reports, organising workshops, getting the issue into the media spotlight, training leaders and their essential role in driving thejusticiability of the right to food forward. NGOs and CSOsare the only institutions with the ability, knowledge andfreedom to act needed to support strategic litigation orle collective lawsuits in the public interest related to theright to adequate food. In the local sphere, the NGOs re-

6 Procuradura or Defensora del Pueblo are both state institutions that areseparate from the government that report to parliament and supervise compliance

with and violations of human (civil and political and social) rights. Their names varyaccording to the different Latin American countries.7 For a series of reports on fourteen countries in the region, visit the Iniciativa

Amrica Latina y Caribe sin Hambre website: http://www.rlc.fao.org/iniciativa/infda.htm.8 See http://www.hungerfreeplanet.org.9 FIAN, Food First Information and Action Network, an organisation dedicated toimplementing and realising the right to food. See http://www.an.org.10 See http://www.derechoalimentacion.org/webkwderecho/index.asp.


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cord and report the violations committed against the rightto food and the right to be free from hunger, and they in-form and explain to hungry people whose rights have beenviolated, given that in most cases, they do not even under-stand that being free from hunger is a right (if they do, itsunlikely that they will be able to le a grievance and takelegal action).

Furthermore, it is important to highlight the role of the

FAO, the United Nations organisation in charge of pro-moting the legal and political development of this right formore than a decade. The FAO Rome Right to Food Unit11has worked on a technical corpus that sustains the nationaldevelopment of the right to food in order to contributeto progress in monitoring, justiciability and legal frame-work development. This unit has also broadened the rightto food scope so as to embrace other aspects of under-development, such as the marginal situation of indigenouspeoples and women, its relationship with biofuels and themonitoring of public spending aimed at making this righta reality. In the region, the Iniciativa Amrica Latina yCaribe sin Hambre (Hunger-Free Latin America and Ca-

ribbean Initiative) is playing a leading role that iskey to promoting more legal frameworks, justiciabilityand parliamentary support to the right to food.

The regions hungry democracies: How manyhungry people are acceptable for a democraticgovernment?

Democracy is more widespread than ever in LatinAmerica and the Caribbean. Democratic governments ex-cept for Cuba rule all the regions countries. This processof re-democratisation in the post-authoritarian era in LatinAmerica was characterised by stripping the content of the

concept of democracy in its broadest sense (which in-volves a development goal) down to another that refers tothe electoral governing system (Roitman, 1995). Now, thesedemocracies are suffering a crisis of legitimacy and ques-tioning in the region as never before in their short history12.The prevailing model of democratic transition hasdisappointed citizens in terms of its ability to reduce in-equality and eliminate hunger and extreme poverty. Theseelectoral democracies have invested all their energies intoreinforcing and ensuring rst-generation human rights (thecivil and political rights), and have postponed economic,social and cultural rights (ESCR), the so-called second-generation (if not second class) rights for the future. Interms of guaranteeing minimum rights such as living withdignity, which are materialised in the right to adequatefood, housing, health, education, work and the develop-ment of ones own culture, Latin American democraciesgenerally fail.

It has been sustained that the democratic electoral sys-

11 See the FAO Right to Food website:www.fao.org/righttofood/12 In 2002, the Latinobarmetro highlighted the fact that only half of those inter-

viewed preferred democracy to any other form of government (ECLAC, 2007a),while in 2004 the UNDP showed that more than half of those surveyed preferredeconomic development without democracy to democracy without economic devel-opment (UNDP, 2004).

tems failure to improve the socio-economic status of itspopulations has led to failed democracies that do notreect the basic principle of democracy; that is, to attainthe wellbeing of its people. The protection of ESCR shouldbe among these principles, 13as they are determining factors in the lives of all people. Guaranteeing human rightsfor all the nations inhabitants, and especially ESCR, is apre-requisite to citizenship in its fullest sense. And democracies are political systems formed by citizens. Thosewho suffer from malnutrition and whose right to food hasbeen violated have no interest, reason or energy to developother facets of their citizenship. They do not feel part of ademocratic system that neglects them to the point that itfails to cover their most basic vital needs. Only when their

basic rights are guaranteed can individuals participate inboth their own destiny and that of the society where theyinhabit: rst me, then my family and nally my group. Thisnatural law of survival also applies to food.

In this sense, it is difcult to talk about consolidated democracies when almost 40% of the regions population livesin poverty, with 71 million extremely poor people and 53million hungry people; when one in four young people re-main outside the labour market and the education systemwhen maternal and infant mortality rates do notcorrespond to the level of economic development; andwhen there are 120 million Latin Americans who have no

access to sanitation. How can starving, sick and illiteratepeople be expected to reach any kind of degree of politicaparticipation, manifested through voting?

Indigenous groups, a demographic majority in some coun-tries, with their strong links to the land and traditions, re-ect better than anybody else inequality in Latin Americaand the disenchantment with the democratic and economicsystems that rule the region, which fail to guarantee theirrights as citizens14 or distribute the benets of sustained

13 Such as political representation, free elections, equal rights, individual freedoms,

responsibility and peaceful conict resolution.14Two of the most basic rights are the right to adequate food and the fundamental


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economic growth equally.15 If democracies continue toavoid dealing with the hunger problem, they fail to fulltheir most basic responsibility: to protect human life.

What is justiciability?

A right is only a right when it can be claimed. The signatorystates committed themselves to take measures to formalisethe rights recognised in the ICESCR (art. 2). A similar provi-

sion appeared in the Inter-American Convention on HumanRights, where it is suggested that legal appeals should bemade in order to demand this right (art. 26). By ratifyingthose conventions, states are obliged to create conditionsthat will guarantee the full validity of ESCR progressivelyand to allocate enough resources. Nevertheless, this shouldbe immediately implemented with vulnerable groups, asit is always the states responsibility to protect this right.It is clear that, as international agreements highlight,each state is sovereign for dening the measures that willallow progress in the fullment of the ESCR (Artigas, 2001).However, the debate on the mechanisms that would makethe guaranteeing of the right to food and its justiciability

possible is still pending.16

The fundamental issue that affects the fullment of theright to food is having the possibility to claim against vio-lations of this right and being listened to by a judge orjury, which will later hand down a ruling that will haverepercussions either for the affected individual or for thestate as a whole. In some cases, the hungry person claimingthe right might even receive compensation for this viola-tion through monetary payment or payment in kind. This isknown as justiciability.17

According to FAO (2004), justiciability is the possibility

of a human right, recognised in both general and abstractterms, to be invoked before a judicial or quasi-judicialbody that can rst, determine if the human right has or hasnot been violated in a particular concrete case presentedbefore it, and second, decide on the appropriate measuresto be taken in the case of violation. Justiciability is thematerialisation of the states obligation to be responsi-ble for a right before citizens through judicial channels.Some of the specic actions regarding this issue includeclassifying the crime, identifying those responsible for vio-lating the right, gathering evidence and proof, presentingthe responsible body to the legal system, sentencing andsetting the punishment determined for each ruling (Kent,2008).

right to be free from hunger, a right very closely linked to the right to life.15 According to ECLAC, the economy grew an average 5% in Latin America from2003-2007 (ECLAC, 2007b).16 Promoting the justiciability of the right to food is one of the FAOs priorities inthe region, considering the importance of making progress in jurisprudence, which

will allow this right to become a reality for all Latin Americans.17The term demandability is often used in the same way as justiciability, eventhough the implication is not the same. Demandability comes from the fact thatproclaiming rights should be accompanied by the possibility that society, in general,can demand a response from those who are responsible for ensuring these rights are

fullled. Justiciability is a more specic concept and should be understood as a legalor judicial demandability in itself, where a formal explanation of an offence or viola-

tion of a specic right is sought.

The justiciability of this right, even though it is very im-portant, is not the only channel for making claims nor isit always the most effective. Nevertheless, the courts arethe ultimate guarantors of human rights and they shouldbe prepared to take all of these rights into consideration(FAO, 2008a). Justiciability has other channels throughwhich it can become effective, such as the mechanismsfor making administrative claims in ministries and thepublic administration, and the quasi-judicial channels that

are represented by the increasingly consolidated humanrights institutions such as ombudsmen and procuradoras,which are slowly beginning to monitor ESCR as part of theirwork. Until now, both of these channels for monitoring andguaranteeing the right to food have had a fundamental roleto play, at a time when there is little formal jurisprudenceon the matter.

The different protection mechanisms offered by theinternational legal system and the existing dichotomybetween the national and international spheres renderthe possibility of making this right justiciable more com-plex.18 A right that is not known cannot be demanded, and

a right that is known but which the state refuses to allowto be demanded is not exercised either. And this is whathas happened for years in the region: no one can complain about dying from hunger, even though their rights arebeing violated. Thus, it becomes clear that many statesfeel no obligation to guarantee the right to food in theirterritory, as they are somehow protected by the concept othe progressive nature of its implementation.

Is food a right and hunger a justiciable violation ofthis right?

One of the main points of the debate about t he justicia

bility of social rights is whether or not they are justiciableOn an international scale, there remains considerable con-troversy in terms of the justiciability of ESCR. Many countries reject the idea of making them justiciable becausethis could interfere with state sovereignty (Kent, 2008).The argument that is gaining momentum, thanks to recentprogress in jurisprudence and academic discussions, is thatthe right to food is manifestly justiciable through its condition as a human right closely linked to the right to life andbecause it is included in a binding international treaty andrecognised in national constitutions and the general prin-ciples of law.The UNCESCR published the following opinion on thismatter in 1998, through the General Comment 9, in whichit makes broad reference to the internal application of theICESCR. Thus the Covenant norms must be recognised inappropriate ways within the domestic legal order; appro-priate means of redress, or remedies, must be available toany aggrieved individual or group, and appropriate means

18 The following can be used as examples: even though the justiciability of ESCRcan be found in the Inter-American Convention on Human Rights, according tothe Protocol of San Salvador on ESCR, the only rights that can be claimed in theInter-American Court are the violation of the right to join a trade union and theright to education. The option of making a complaint relating to the right to food isexpressly excluded.


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of ensuring governmental accountability must be put intoplace (United Nations, 1998). Furthermore, GeneralComment 12 on ICESCR stated that any person or groupwho is a victim of a violation of the right to adequate foodshould have access to effective judicial or other appropri-ate remedies. These statements reveal the clarity of theICESCR in terms of reafrming the demandability and justi-ciability of the right to adequate food and the fundamentalright to be free from hunger the minimum threshold for

guaranteeing the right to food.

Regional legal tools contain similar provisions concerningthe right to appeal for the rights contained in the treaties.19Two examples are art. 25 of the Inter-American Conventionon Human Rights and art. 13 of the European Conventionfor the Protection of Human Rights and Fundamental Free-doms. A specic issue affects Latin America related to theProtocol of San Salvadoron ESCR, which was added to theInter-American Convention on Human Rights. The proto-col includes a brief mention of the right to food in art. 12and mentions other ESCR, such as the right to education,health, culture and employment. Nevertheless, according

to art. 19.6 which refers to protective measures in the caseof violations of these rights, only workers right to organisein trade unions (art. 8.a.) and the right to education (art.13) are analysed. Therefore, they are the only justiciablerights for the Inter-American Commission on Human Rights(IACHR).

In line with its overall doctrine against the right to food,the United States expressed its disagreement with theability to submit cases of violations of the right to food tothe IACHR. For this reason, the 53 million hungry peoplein Latin America and the Caribbean whose right to be hun-ger-free has been violated do not have the possibility of

appealing or ling a grievance in an international body thatprotects human rights.

The same holds true in Africa, where there is no option forcomplaining about the violation of the right to food to theAfrican Commission on Human and Peoples Rights20, un-derlining the sad paradox of a continent where one-third ofthe population is still malnourished and the number of hun-gry people continues to grow every year21. Fortunately, thissituation of defencelessness is close to becoming obsoleteand a historical change will take place once the ICESCRsOptional Protocol comes into force.

The Optional Protocol to ICESCR will promote justi-ciability on an international level

On the 10th of December 2008, the United Nations GeneralAssembly adopted the Optional Protocol to ICESCR, whichprovides the United Nations CESCR with additional au-

19 Appeal should be understood as a legal or judicial mechanism through which aright can be upheld or its violation prevented, redressed or compensated.20African Commission on Human and Peoples Rights. See http://www.achpr.org.21 Since 1990, the number of hungry people in Sub-Saharan Africa has continuedto grow: in 1990 there were 169 million, in 1997 194 million and in 2005 212 million(FAO 2008c).

thority to monitor the proper enforcement of the rightsrecognised in the ICESCR at a national level. This protocois similar to the one that already existed for the International Covenant on Civil and Political Rights. In this way,the universality, indivisibility and interdependence of alhuman rights are made ofcial. From now on, victims ofESCR violations will have an international mechanism thatwill allow them to make effective appeals against the violation of their rights, once they have used the existing claim

and grievance mechanisms of their own countries or if theuse of these national mechanisms takes too long (VillanDurn, 2009). In this way, international law is mademore accessible to millions of excluded persons, groupscommunities and peoples throughout the world.

In the case of the right to adequate food, the CESCR interpreted that art. 11 of ICESCR implies that all people andgroups who are the victims of a violation of the right tonot suffer from hunger should have access to suitable legaappeals procedures and other appropriate procedures on anational and international level. Furthermore, all the victims of these violations have the right to proper compen-

sation, which can be in the form of restitution, damages,compensation or assurances of non-repetition. Moreoverthe person whose right has been violated can le agrievance in the courts without having to provide conclusive proof. In all cases, the state is responsible for providing the necessary proof that shows that this violation isnot real, or if it is, for providing the necessary explanationsand justications. The burden of proof, in the case of ESCRviolations, falls upon the guarantor state. Now we needstates to translate their verbal commitments into concretereality and adopt the Protocol. Once the tenth signatorystate raties the Protocol, it will come into force.

Although the twofold dimension of the right tofood affects its justiciability

Although it could seem easy to launch the justiciabilityof a right as fundamental as food, without which one diesand any other human rights make no sense, up until nowthere have been numerous legal, methodological, nancial and even sociological problems that have meant thatthe legal implementation of the violation of this rightwhich happens to millions of people in Latin America on adaily basis, has been scarce in ordinary courts or the humanrights arena in general. The right to food is a right whoserealisation depends on many factors. It is linked to otherhuman rights, from the right to property and access to justice to the right to employment, information and educa-tion, among others.The right to adequate food has two dimensions accordingto General Comment 12, which explains its scope withinthe ICESCR. The fundamental right to be free from hungerunderstood as the minimum threshold in terms of the rightto food, is described as the minimum amount of energy thatour body requires to undertake its functions. Eating lessthan this threshold is therefore a threat to life22. For this

22 Based on the extensive experience acquired, the ESCR Committee is of theopinion that it is the states responsibility to have a minimum obligation of ensuring


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reason, it is considered to be fundamental and implicitlylinked to the right to life (Eide, 2005). Nevertheless, bothits regulatory development and the characteristics of de-mandability and justiciability, and the denitions of mini-mum thresholds and immediate recursos de amparo (thepossibility of claiming protection for ones constitutionalrights) for those who suffer from hunger have not been

fully developed, which in turn leaves this fundamentalright in a kind of legal limbo and in no way facilitates theprogress of jurisprudence (FAO, 2004; Restrepo-Yepes andCorrea-Montoya, 2007). Compliance with this right shouldbe considered immediate, compulsory and free from le-gal loopholes that allow responsibilities to be avoided byclaiming budgetary limitations or gradual implementation.In fact, the Limburg Principles establish the existence ofESCR obligations that must be met immediately23, regard-less of states nancial capacity, as well as obligations thatmust be complied with progressively (FIAN, 2007a).24

The second dimension is the right to adequate food for allhuman beings, in terms of both quantity and quality: thosewho are suffering from hunger as well as everyone else.This right implies that the food must be produced in a sus-tainable way, that it must be properly processed, it mustbe harmless and nourishing and chosen by the consumeraccording to his/her taste and food preferences, which aredened by his/her cultural patterns and affordability. Allof these elements show a series of aspects based on theidea of food consumption that goes far beyond justgetting nourishment and eating the calories needed tomaintain ones body active. This second dimension is shouldbe gradually implemented and is related to the progressive

nature of the states social spending. In terms of priority,it should not be legally demandable for the entire popula-

the satisfaction of at least the essential levels of each right. For example, a statewhere a large amount of individuals are deprived of essential food prima facie is not

fullling its obligations in terms of the Convention (United Nations, 2000). If theConvention must be interpreted in a way that it does not establish minimum obliga-tions, it would, to a great extent, lose its raison dtre.23These types of obligations do not require a period of time for their execution andthey can be considered obligations on results. Some examples include the obliga-tions of non-discrimination, judicial protection, adopting appropriate measures for

upholding a right and eliminating all legislation that affects the fullment of ESCR.24These obligations require a period of time to full the right in question. Theyinvolve adopting measures whose goal can only be reached after the state begins the

activity that is designed to full them. Obligations on gradual implementation aretraditionally categorised as part of the obligations on conduct.

tion, as there are many legal subjects whose situation isnot as dire as those who are dying of hunger.

Both dimensions have different human, nancial and legaimplications, even though they are only now beginning tobe differentiated. At present, in the countries of the re-gion, the constitutional protection of the right to food doesnot distinguish between these two dimensions, nor does itestablish which aspects are justiciable and which are not

There is considerable fear among human rights activiststhat the excessive development of one dimension will endup weakening the other, especially if all efforts are madeto strengthen the dimension of being free from hunger, tothe detriment of that related to adequate food.

What can the hungry demand from their governments?

Even though it is important to remember that most na-tional constitutions do not include the text of the ICESCRverbatim, it could be useful to remember the specic obligations that the Covenant imposes on state parties. While

it is recognised that the full realisation of the right to foodcan only be achieved with time, and that it depends on theavailability of resources, the ICESCRs state parties haveshown their commitment to international responsibility forthis right. National responsibility will depend on internalegislation, specically the international treaty systemconstitutional regulations, legal principles and politicaresponsibility. States cannot postpone their actions indenitely, even if rights must be realised gradually over timeand are limited by the amount of resources available.

Having claried the content of the right to adequate foodin General Comment 12, an overall denition is made of

the obligations of ICESCR state parties in terms of this rightand the other ESCR. In this way, the following kinds of stateobligations are used to examine and evaluate justiciabilitythe obligations to respect, protect and full this right (thelatter includes the obligation to facilitate and provide).

Respect. The obligation to respect the right to adequatefood obligues states to not adopt measures that will pre-vent individuals and/or groups from using their own meansto full this right. From a conceptual point of view, thisestablishes a negative, binding obligation, which would beviolated if the state were to authorise, impose or toleratein any way policies, programmes and/or ofcial measuresthat would destroy the peoples source of food such ascrops or food stocks without a valid reason or reasonablecompensation.

Protect. The obligation to protect demands that statesguarantee that private entities companies or individuals cannot deprive other individuals of access to adequatefood. These measures include the coercive enforcementof the legislation in force and guarantees of making theseentities subject to the law that protects societys mostvulnerable groups against external interference. Anotherexample could be the non-protection of tenants illegally


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evicted from their farmland by other individuals or com-panies; that is, not protecting the individual right to food

through interference or a lack of respect by third parties,which could also be justiciable.

Full (facilitate).The obligation to full the right (facilitateits implementation) means that the state must proactivelycarry out activities in order to strengthen peoples accessto resources and means that will guarantee their subsis-tence, including their food security, and their use of theseresources and means. Regarding the examples of measuresto facilitate access to food, examples include educationand training, agricultural reform, support policies for urbanand rural development and information about markets.

With regard to these obligations, the state usually has con-siderable leeway. The most appropriate issue to be con-sidered when adopting a judicial or quasi-judicial resolutionshould be rst whether the state has taken measures tofacilitate access to food by the affected person or groups,and, second, whether these measures are reasonable orappropriate, considering the circumstances (political andeconomic situation in the country). Consequently, thecourt should determine if measures have been adopted andwhether they are reasonable or adequate. In conclusion,the obligation to facilitate could be considered the mostcomplex issue to be resolved by judges. In these cases, it

would be important to examine the obligation to full thisright (facilitate its execution) from the perspective of thebudgetary repercussions when the state sets its priorities.

Full (provide).According to the CESCR, when an individualor group cannot, for reasons beyond their control, enjoythe right to adequate food with the means to which he/they have access, states have the obligation to full thisright directly (obligation to supply) within the limit of theresources to which they have access (maximumavailable resources). This obligation also concerns the vic-tims of natural catastrophes or other types of tragedy.

The obligation, therefore, consists not of supplying foodto each and every person, rather to those who cannot lookafter themselves due to age, disability or other reasons.

When is the right to food violated?

While it may seem absurd, when a person is hungry,suffers from malnutrition or dies from acute malnutrition,this does not necessarily mean that the ICESCR has been

violated, even though his/her right to adequate food hasbeen violated. Even if he/she has died of hunger, we cannotnecessarily make a claim that the ICESCR signatory statehas failed to comply with the binding legal framework. Wewill now explain the exact scope of an ICESCR signatorystates responsibility towards its citizens.

For legal and/or judicial purposes, it can be useful to establish a distinction between insufcient or inadequateaccess to or use of food, which results in malnutritionor undernutrition, and the cases in which these can beblamed on the violation of the right to food of the per-son in question. While we can almost certainly say that a

person suffering from chronic malnutrition can state thathis/her right to food and nutrition has not been upheld,for a justiciable violation to exist, according to the ICESCRand subsequent general comments, the following must betaken into account: whether the state has the obligation toadopt certain regulations and to what extent, and, whenapplicable, the states possible inability to adopt measuresrelating to upholding this right or other possible argumentsof this kind in its defence.

Within the context of justiciability, a clear distinction ismade between obligations of results and obligations of conduct. Obligations of results imply the effective enjoyment

of the right to food (evaluated, for example, through anthropometric data). The obligations of conduct exist whena state adopts measures calculated rationally to achieveenjoyment of the right to food. Possible violations of thisright can be determined by the competent body.

For this reason, the mere existence of malnutrition in acountry does not necessarily prove the existence of a violation of the right to food (FAO, 2004). If it were this evidentthe more than 120 countries with hungry, malnourished orundernourished people would all be subject to claims forviolations of this right. However, it has already been mentioned that there is little jurisprudence on this matterNevertheless, if the both income and malnutrition levels ina country are relatively high, this could indicate that thestate it not adopting the necessary and adequate measuresto the maximum of the available resources. Nevertheless,when a government allows hunger to exist in a country, themost essential factor is the immediate solution rather thanany kind of punishment (Kent, 2008).

Unfortunately, in most countries, there seems to be aninconsistency between the policies promoted and the hu-man rights treaties signed. Many states show no evidenceof consistency in terms of their own practices (United Na


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tions, 2008). Frequently, one state institution proposesthat the right to food be protected and promoted, whileothers adopt decisions or apply policies that directly con-tradict this right. One clear example of this situation in ourglobalised world is the commitment to basing de-velopment on rights and the adoption of trade policies thatcontravene human rights in other countries. Consistencycould be achieved if human rights were placed at the coreof government policy and if policies and programmes that

negatively affect the right to food of inhabitants in othercountries were changed, as suggested in the Vienna Decla-ration and Programme of Action (1993).25

Different types of violations of the right to food

Between 1995 and 2005, FIAN recorded several cases ofviolations of the right to food in Brazil, Ghana, Honduras,India and the Philippines. These cases were analysed byDe Loma-Ossorio (2008), who identied violation patterns,organised around the states obligation to respect, protectand promote and its obligation to guarantee non-dis-crimination.

a) The obligation to respect: The most common kind ofviolation monitored by NGOs such as FIAN International isforced eviction from farm lands by the state withoutsuitable compensation, resettlement or rehabilitation.Forced evictions are usually the result of major develop-ment or infrastructure projects (dams, mining, plantationsfor biofuels or large estates). The root of this problemusually lies in a clash between landless peasants and pri-vate owners.

b) The obligation to protect: The most frequent type of viola-tion is insufcient protection against the activities of mul-

tinational corporations and single-crop agribusinesses thatuse pesticides and pollute peasants sources of livelihood,whether for biofuels or export crops. This also includesmining activities that pollute the water and land or nega-tively affect the phreatic level of wells. Another recurringcase is the inadequate protection of land tenancy, in termsof both private ownership of small farmers and collectiveownership by ethnic groups (common rights that are in-cluded in many bodies of laws in Latin America)26. Illegaldismissals and the denial of salary or benets are also men-tioned in some cases as a violation of the right to food.27

c) The obligation to promote: The violations identied underthis category are related to failures to implement actionplans for agrarian reform or non-implementation or dis-crimination. Another increasingly frequent example, dueto the abundance of programmes, is the malfunctioning ormisappropriation of funds in conditional cash transfer pro-grammes.

25 In the Vienna Declaration and Programme of Action (1993), all states recognised

that the protection of human rights is the rst responsibility of governments(United Nations, 1993).26 See the jurisprudence of the case of the Yakye Axa indigenous community versusthe State of Paraguay presented later on.27 See below the case of Carmen Janeth Molina in Guatemala.

d) The obligation to guarantee non-discrimination: Womenchildren and ethnic minorities tend to suffer more serioushunger than other groups as a result of the discriminationthey suffer when accessing food or productive resources. Itis important to highlight the fact that women who belongto minority groups suffer even greater discrimination dueto the additional impact of gender discrimination. There isa saying in the region that describes hunger as having theface of a young indigenous woman, which is a fairly accu-

rate reection of the latest statistics.

Another aspect that deserves special comment is that incertain cases related to the violation of the right to foodthe implementation of immediate redress and the provisionof non-repetition measures in the future might be morereasonable and effective than imposing sentences and/orpunishments on those responsible for the offence (Kent2008), such as in the case of the anomic state, countries atwar or those engaged in civil conict, or very poor countries that are suffering a serious lack of food. The idea ofhelping governments to meet their failed obligation insteadof legally convicting them seems to have more chances of

success and is also contained in the ICESCR and the newOptional Protocol.

Analysis of jurisprudence related to the right tofood

The purpose of the justiciability of the ESCR is the effective judicial protection of the victims; in other words, therecognition of the right in the specic case, the declaration of its violation and the order to provide compensationreparation, satisfaction and the adoption of measures toensure that it does not happen again (FIAN, 2007b). At thesame time, the only purpose of effective protection is to

guarantee the complete fullment of the right.

All levels of obligation relating to the right to food canbe and have been considered justiciable. Nevertheless,the obligation to respect and protect and the obligationto award the right to food in a non-discriminatory way arethe least problematic aspects (FAO, 2004). Certain factorssuch as the countrys standard of living, the denition ofthe poverty line, the resources available and the existing


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programmes, should be taken into account by the courtsor quasi-judicial bodies when dening or ruling on cases ofviolations of the right to food. However, something morethan state-level and judicial recognition of justiciabilityis required to guarantee that the victims of violations ofthe right to food have effective access to justice ona national level. Greater knowledge of the right to foodand the corresponding obligations of the holders of thisright are required. Lawyers should be trained so that they

are able to effectively defend this right, and judges shouldacquire the necessary knowledge to be able to rule onthese allegations. In fact, given the current status of thejusticiability of ESCR, the role of the judge is very impor-tant, as the acceptance, denial or ruling in a case like thisdepends on his/her knowledge, sensitivity and interpreta-tive skills, bearing in mind the lack of jurisprudence andthe broad leeway for interpretation of the written legalregulations.

Today there is little jurisprudence available relating tothe right to food, although there is a growing corpus re-lating to other ESCR28 which clearly justies the potential

for the national and international justiciability of theserights (Verna, 2005). As the amount of ESCR-related juris-prudence increases, the international courts and quasi-judicial bodies play a very active role in the defence ofstates positive obligations, especially when they fail toimplement programmes, laws, policies or budgets, or if anykind of discrimination has taken place or an individual hasbeen deprived of his/her life due to a violation of the rightto health or food.

To date, there have been few cases where national courtshave issued rulings based on the regulations relating to theright to food (FAO, 2006). Nevertheless, there are some

positive signs of progress, such as the strengthening ofjudicial and other types of mechanisms and the slow butsteady advance of jurisprudence. Moreover, the proceduresthrough which effective corrective measures can beadopted in cases of violation of the right to food are ex -pected to become increasingly clear at national as well asinternational level, once the Optional Protocol enter intoforce.

The examples of India and South Africa

The Supreme Court of India passed a resolution throughwhich food grain must be supplied to the elderly, the sick orthe disabled, to destitute women and men at risk of deathfrom starvation, to pregnant or breastfeeding women, andto destitute children, especially when these individuals ortheir relatives do not have sufcient nancial resources tomaintain themselves. The obligation to supply can be jus-ticiable in the country (Acharya, 2007; Gonsalves, 2007).According to the Supreme Court, the fundamental right tolife should not be seen solely from the perspective of the

28There are databases on this legal corpus available from various organisations, suchas the International Network for Economic, Social and Cultural Rights (ESCR-Net)on its website www.escr-net.org; Interights on its website www.interights.org; and theCentre on Housing Rights and Evictions (COHRE) on its websitewww.cohre.org/litigation.

negative obligations of not killing or not depriving of food,water or oxygen, but should also cover the positive obligations related to the right to sources of livelihood thatwill allow citizens to maintain a dignied existence (Verna, 2005). This extension of the notion of the right to life,thanks to public interest lawsuits with positive rulings thatthe state of India had to comply with, has enriched thejurisprudence on the right to food with expressions suchas basic living needs or the minimum expression of the

notion of human dignity.

Two of the most well-known cases in India, which have extended far beyond this countrys borders (COHRE, 2006are the case of famine-induced deaths in the Indian stateof Orissa (2003). The case brought to court by the NGOPeoples Union for Civil Liberties against India (2003) forkeeping food in silos despite numerous deaths from hun-ger in the state of Rajasthan. In the former, Indias actionmanuals violated the right to food, which is an essentiaelement of the right to life as captured in art. 21 of theconstitution, by considering hungry people to be simplebeneciaries of humanitarian aid and not right holders. In

the latter, the Courts decisions included establishing theidea that all malnourished people who do not have theability to feed themselves independently (the elderlywidows and disabled people) would receive a free grainration and that the government should progressively implement the provision of food in all schools (Guha-Khasnobisand Vivek, 2007).

Another good example of justiciability comes from theSouth African Constitution, which provides a relativelynovel interpretation that does not distinguish betweencategories of rights and stipulates instead that alrecognised human rights should be respected, protected

and fullled (Tveiten, 2005). This includes key social rightssuch as the right to food, water, housing, health and sociasecurity. When appropriate, certain rights can therefore befullled, including the right to food, in line with the resources available and through the adoption of reasonablemeasures. Some judicial decisions, such as the well-knowncase of Irene Grootboom and the right to housing, establishthe competence of South Africas national courts to set,immediately and using all of the available means, certainminimum thresholds for ESCR, which does not contradicttheir gradual implementation. In several countries in LatinAmerica, courts have ordered governors, for example, toprovide HIV/AIDS treatment immediately.

In some of the most progressive systems, such as the Co-lombian one (Sentence T-0025 of 2004), judges have established systems for monitoring compliance with theruling for cases where a certain amount of time was need-ed for their execution, such as when a public policy mustbe implemented or an entire population group must becovered (FIAN, 2007b).

Examples from Latin America

As can be seen in a FAO regional report (FAO, 2008a), since


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2003 a remarkable progress has been made in the legal andinstitutional framework for ghting against hunger in theregion. The driving force is the guarantee of the fundamen-tal right to be free from hunger and the right to adequatefood for all of the regions citizens. The issue of the ghtagainst hunger has been gradually included on nationalpublic agendas. What began as the Lula da Silvas leadingpolitical idea during the presidential campaign, the FomeZero has gradually become a hallmark for governmental and

NGO actions in the region, from Mexico and the initiativeto make the right to food part of the federal Constitutionto Argentina and the creation of the rst food security law(2003) that includes the right to food. Additional to this,civil society organizations in many places have started toproduce progress reports about the issue29, and news itemsmentioning the right to food are being published more andmore frequently in the media.

One way to protecting the right to food is by including itin the State Constitutions. In this sense, countries can beclassied in three groups, according to the type of protec-tion they guarantee for the right to food:

1. Constitutional provisions in which the right to food isdirectly mentioned and is applicable to the entire popu-lation: Brazil, Ecuador, Guatemala, Guyana, Haiti, Nicara-gua, Panama and Suriname.

2. Protection of the right to food of a specic group: Bo-livia, Brazil, Colombia, Costa Rica, Cuba, Ecuador, Guate-mala, Honduras, Panama, Paraguay, Peru, Dominican Re-public and Uruguay.

3. States signatories of the ICESCR, in which the treatyis applied directly through the constitution: Brazil, Costa

Rica, Ecuador, El Salvador, Guatemala, Honduras, Nicara-gua, Paraguay, Peru, Suriname and Venezuela.

Nevertheless, it is worth noting that in some countries theonly approach to protection has been the constitutionalisa-tion of justice relating to ESCR by including the differentrights in the constitution although those rights will not belater on developed into criminal or civil laws. Other meansof protecting ESCR have been explored by countries likeArgentina, where the Constitution was modied in 1994so as to facilitate the protection of ESCR and to createa mechanism of Amparo Colectivo(collective protection)that can be presented by a private individual to protect agroup against collective violation. International treaties,such as the ICESCR, have therefore been turned intobinding national laws.

In the case of Brazil, it has been shown that the sub-mission of collective grievances relating to the right to foodthrough administrative and quasi-judicial channels can be apowerful tool for the right holders, and this has generateda growing commitment by the duty bearers to full their

29 Some can be reviewed on the website of Iniciativa Amrica Latina y Caribe sinHambre (Hunger-Free Latin America and the Caribbean Initiative): http://www.rlc.fao.org/iniciativa/infda.htm

human rights responsibilities. This is especially true if therulings on the grievances are monitored by human rightsorganisations or ombudsmen, who can supervise whetherthe penalised institutions comply with them or not. Atthe same time, speedy access to grievance mechanisms incases of state obligations that have not been met withinthe corresponding timeframe is an essential element in theprocess of justiciability (Valente, 2007).

We will now present a brief description of four cases of thejusticiability of the right to food in Honduras, GuatemalaParaguay and Argentina. In spite of the lack of jurispru-dence, the absence of an Optional Protocol for ICESCR andthe barriers put in place by the Protocol of San Salvador,Latin America has seen a series of cases where the right tofood is used as a legal argument to defend social rightsThere is evidence of other very recent cases in Brazil andColombia, but not having enough knowledge prevented usto provide a comprehensive summary of them. These fourcases yielded diverse results, three under national and oneunder international jurisdiction. The right to food is associated with the right to life in two of them and the funda-

mental right to be free from hunger (Argentina) only in onewhich relates to the aforementioned idea that the conceptual development of its legal implications is limited.

a) The Case of Brisas del Bejuco in Honduras (2007)

This is one of the few successful cases in which the rulingwas in favour of the plaintiff, who used the right to foodas the legal argument. It is a ruling passed by the SectionaCourt of Appeal in San Pedro Sula on the 12th of November2007, which is rightly pointed out as historic.

In a situation of agrarian conict between the peasant

group Brisas del Bejuco and a local landowner, thepeasants were accused of misappropriation. The CriminaCourt of First Instance ordered the immediate eviction ofthe accused. Under the threat of eviction, the leader ofthe peasant group told their lawyer about a training sessionhe had attended on the right to food. The lawyer, who wasunaware of the issue, was given the documents discussingthe issue distributed during the training session and pre-sented a Recurso de amparo (appeal for the protectionof the subjects constitutional rights) in order to stop theeviction, basing his defence on the states obligation toprotect the right to food. In its ruling, the Sectional Courtof Appeal of San Pedro Sula recognised the lawyers argument, making broad reference to ICESCR and General Comment 12, and concluded that a human drama is implicit inany eviction, creating serious violations to human rightsand therefore the eviction order should be invalidatedand rendered ineffective.This was the rst time in Honduras that a legal ruling wasbased on the validity of the ICESCR. For this reason, thisruling is of great importance in terms of promoting the jus-ticiability of the right to food in the country. It is also aparadigmatic case of jurisprudence that will surely serve asa point of reference for other legal disputes within the context of agrarian conict in Honduras and in other countries


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in Central America. Furthermore, this case shows quiteclearly the importance and achievements of the trainingon the right to food received by justice workers and theright holders.

b) The Case of Carmen Janeth Molina, Quezaltenango, Gua-temala (2006)

Even though there was no happy ending for this Guatemalan

case, it can be used as an example of how the right to foodcan be used as a legal argument in different labour cases,whenever a familys food security is in danger. This is therst case regarding the justiciability of the right to food inGuatemala, a country that suffers from chronic child mal-nutrition rates of 54%, and it revealed the fragile structureof the organisations in charge of ensuring that social rightsin the country are fullled, even though Guatemala signedand ratied the ICESCR more than 20 years ago.

The trial judge in the Department of Quetzaltenango ar-gued, in the nal ruling of a labour case, that a cleaningworkers right to food had been violated as a result of un-

fair dismissal and the deliberately-extended grievance pro-cess, with the aim of wearing down the plaintiff. CarmenMolina worked as a cleaner and porter when she was red.At that time, this was a typical case of the employers fail-ure to protect his worker, as the company refused to payher salary, which, in turn, led to a agrant violation of herright to food, given that the companys lawyers attemptedto drive her to despair so that she would drop the case.To do this, they made use of appeals and arguments thatprolonged the hearing and delayed the nal verdict, withmore than 24 months spent on the proceedings. During thistime, Carmen Molina stopped paying the rent on the roomshe rented and both she and her children suffered from

hunger on several occasions, as her only livelihood was thejob she had lost.The judgement cited art. 11 of the ICESCR, in which the sig-natory states recognise that everyone has a right to food.Moreover the covenant is complemented by art. 46 of Gua-temalas Constitution, which became an ordinary law withthe Decree No. 32-2005, the Food and Nutritional SecurityLaw that raties the right to food for all citizens.

When the ruling was handed down with a ne of $7,000, thepenalised party lodged an appeal to the Supreme Court,claiming inconsistency and favouritism. The appeal wasgranted. The amount of the penalty spurred the companyto hire a good team of lawyers for its defence. At this pointof time, the fragile nature of the protection of the right tofood in Guatemala became evident. Once the appeal waslodged, the injured party, Carmen Molina, needed to carryon with the case and that implied covering court costs.

Once notice of the appeal was received, Carmens lawyersrequested the support of the Human Rights Procuraduraand the UN Ofce of the High Commissioner for HumanRights, but for a variety of reasons she did not receive theproper support and counsel. Finally, the Supreme Court rejected the case and it was dismissed.

c) The Case of the Yakye Axa Indigenous Community versus theState of Paraguay (2002)

This involves a grievance presented by the Centre for Jus-tice and International Law (CEJIL)30 to the Inter-AmericanCommission on Human Rights (IACHR), due to the state of

Paraguays failure to recognise indigenous communitiesownership of ancestral lands. This failure is linked toa violation of the right to life through the deprival of tra-ditional means of subsistence, among them the right tofood.31 The Paraguayan indigenous community YakyeAxa, a Guaran people, lodged a grievance against thestate for failing to recognise its ownership of its ancestrallands. In January 2002, the claimants informed the IACHRof the states failure to full the commitments containedin the Agreement to Seek Common Ground. The Yakye AxaCommunity decided to withdraw from the negotiating talkswith the government and requested that IACHR issue thecorresponding admissibility report. In February 2002, the

IAHCR declared the grievance against the State of Paraguayfor the violation of arts. 4, 21, 25, 8 and 1.1 of the American Convention of Human Rights admissible.

Due to the impossibility of resolving the case through theCommission, the case was referred to the Inter-AmericanCourt of Human Rights, which deemed that Paraguay hadnot adopted the necessary and correct measures in its domestic law to guarantee the community the effective useand enjoyment of their ancestral land; and in doing so thefree development and transmission of their culture and traditional practices were threatened. The Court ruled thatParaguay had violated the rights to ownership and legaprotection, as well as the right to life, given that it deprivedthe community of access to its traditional livelihood.

It is worth highlighting that the right to food was not usedas the main argument in this case, as it is excluded fromthe justiciable cases mentioned in the Protocol of SanSalvador. Nevertheless, this right is protected due to itsdirect relationship with the right to a dignied life andthe minimum food threshold associated with the right to30 Centre for Justice and International Law, an NGO that acts through strategiclitigation in favour of ESCR31 More information athttp://www.escr-net.org/caselaw/caselaw_results.htm?attribLang_id=13441.


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life. Furthermore, the Court understood that the state didnot adopt the necessary positive measures to ensure that,during the time they were landless, their living conditionswere compatible with their dignity.

During their stay alongside a road opposite the lands forwhich they were claiming ownership, the communitylacked suitable access to food, healthcare and education.Sixteen people (under 6 and over 58 years) died as a result

of these living conditions. The Court deemed the State hadthe duty to adopt positive measures aimed at fullling theright to a dignied existence, especially in the case of peo-ple living in a situation of vulnerability and risk. The Courtordered the State to demarcate the traditional lands andhand them over to the community free of charge, providingthem with the basic goods and services for their subsis-tence until their lands were restored. The Court reafrmedits broad interpretation of the right to life by taking intoaccount the regulations related to health, education andfood mentioned in the Protocol of San Salvador. In its inter-pretation, it also took into account the general commentsof the CESCR, the supervisory body of the ICESCR.

d) The Case of the Ombudsman versus the State and the Prov-ince of Chaco on behalf of Toba Indigenous People, Argentina(2007)

As a result of the grievance led by the National Ombuds-man against the State and the Province of Chaco32, in whichconstant violations of fundamental human rights were re-ported including the right to food among indigenousToba populations in Chaco Province, the Supreme Court ina ruling dated the 18th of September 2007 deemed theJudicial Powers obligation to nd the necessary means toguarantee the effective enforcement of the rights recog-

nised by the national Constitution and the internationalconventions. According to the Ombudsman, the situation ofthe communities located in southeast Chaco was a silent,progressive, systematic and inexorable extermination.The grievance is based on the results of investigations bynational institutions and the National Department of Hu-man Rights. Furthermore, it quotes the media revealingthe serious health, food and socioeconomic crises expe-rienced by the Toba peoples, as a result of which most ofthe population suffers from chronic illnesses related to ex-treme poverty (malnutrition, Chagas disease, tuberculosis,donovanosis, bronchitis, parasitic diseases and scabies), alack of food and no access to drinking water, housing andessential healthcare. It highlights that, as a result of thishealth and food crisis, eleven deaths33 from acute severemalnutrition were registered in August 2007.

The grievance, therefore, requested the State and the De-partment of Chaco to be urged to continuously and per-manently guarantee a real and effective quality of digni-ed life, along with the rights involved in the expression of

32The complete text of the complaint made to the Supreme Court for the exter-mination of indigenous communities can be found at:www.ceppas.org/gajat/index.php?option=com_docman&task=doc_view&gid=181.33This circumstance would have been corroborated by the Chaco Indigenous Insti-tute and the Department of Human Rights.

this dignity in the broadest and fullest sense. It stated thatthe signing and ratication of international human rightstreaties, the explicit and implicit mandates of the nationaand provincial Constitutions and the numerous nationaand provincial laws related to the fundamental rights ofindividuals clearly place both states as passive subjects ofthe lawsuit. In this sense, it afrms that the national statemust guarantee inhabitants essential rights and therefore,concurrently with the provincial or municipal states, ful

the populations basic needs.

The Supreme Court34 ruled that the national and provincial states should provide immediate aid to the indigenouscommunities due to the serious and urgent nature of thesituation, without prejudice to the nal decision of thecase. For this reason, it decided the following:

To summon the State and the Province of Chaco to provide a report to the Court within 30 days of the differentactions and statistics relating to the indigenous commu-nity living in the departments of General Gemes andLibertador General San Martn, including the community

members, (b) a budget for tending to indigenous issues andthe destination of the allocated funds in the respectivelaws, (c) implementation of health, food and healthcareprogrammes, (d) implementation of programmes providingdrinking water and fumigation and disinfection services,(e) implementation of education plans, and (f) implemen-tation of housing programmes.

To invoke the requested precautionary measures and thusorder the State and the Province of Chaco to supplydrinking water and food to the indigenous communitiesliving in both departments, as well as to provide adequatemeans of transport and communication to health centres.

To organise a public hearing where the parties shouldexplain the measures taken to resolve the situation of theindigenous communities in the face of deaths by malnutri-tion and diseases of poverty.

The result of the hearing was a tough questioning of theauthorities due to the inefciency of their aid policies inview of the reports presented by the community represen-tatives and the Ombudsman. The latter took advantage ofthe meeting to denounce the fact that after visiting variousvillages one week before the hearing, he saw, in situ, thatneither the food nor the water provided by the precautionary measures had arrived. Between August and Novem-ber 2007, 21 deaths were registered from causes relatingto malnutrition and poverty. The last three were childrenunder the age of three.

Restrictions to justiciability: A law that citizens andjudges are unaware of is not applied

In spite of recent progress, regional and global jurisprudence on the right to food is still scarce. This is due to a

34The Supreme Court of Justices ruling is available on the internet at:http://www.defensor.gov.ar/informes/fallochaco.pdf


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series of legal, administrative, economic and knowledge-based limitations. That is, the law is not applied if theclaimant and the judge are not familiar with it. In fact, thelegal implications of the international human rights trea-ties at national level are quite weak, and many trial judgeshardly know anything about the ESCR.

a) Human rights cannot be legally invoked

In many countries, legal regulations do not yet considerinternational human rights conventions (including civil, po-litical rights and the economic, social and cultural rights)as a source of formal law unless there has been a specictransposition of the provisions of the conventions to thenational legal framework. Even if they have been incor-porated into the national body of laws, in many cases theviolation of these ESCR only carries moral convictions and/or convictions of non-repetition or modication of a law orprogramme and hardly ever criminal punishment or nan-cial compensation. ESCR do not seem to be at the samelevel as violations of civil or political rights (as an example,the censorship of a newspaper or the banning of a political

party because of its ideas).

b) Problems accessing the ordinary courts

Jurisprudence is an incentive and a solid foundation uponwhich other cases can be built; through its nuances it broad-ens the spectrum of what is justiciable as well as the formsand arguments used. The pull effect of a favourableruling (the former Honduras case) or the discouraging im-pact of an unfavourable ruling (the Guatemala case) areissues that must be taken into account in this initial phaseof incipient jurisprudence. Each case, whether presentedto an ordinary court or a quasi-judicial body (human rights

ombudsman), is highly relevant. More successful casesare needed to become precedents for future justiciabilitycases.

As it has already been noted, cases can be submitted tojudicial or quasi-judicial institutions. Regrettably, ordinarycourts, which are more accessible for households facingfood insecurity35, tend to not know about this subject, andESCR do not appear in the long list of citizens rights. Thisurgently requires greater awareness of the importance ofthe right to food and its relationship with other citizensfundamental rights.

Human rights rapporteurs (procuradores and/or ombuds-men) have traditionally focused on civil and political rightsand hardly touched on social rights. For example, an ESCRunit was only recently opened at the Ombudsmans Ofcein Ecuador, while the Procuradora for Human Rights in Gua-temala only presented its rst report on the right to food,in line with the Food and Nutrition Security Law of 2005,in 2007. Fortunately, the impetus has been maintained and

35Access to justice is a major limiting factor in Latin America, where the averagecost of a lawsuit comes to around $3,000. This simple fact limits access to justice formore than 90% of the regions citizens, who do not have the economic capacity totake a case or grievance to court, whether it be civil, criminal or for the violation ofsocial rights.

this Procuradura has already presented the third reportthis year 2010.

These problems of access to the legal system and themechanisms for ling a grievance are rather evident tothose who are suffering from hunger: those whose right isbeing violated. The hungry people are the least organisedmembers of their society with the lowest level of education. They are also the least empowered in terms of ling

grievances and trusting the government and the judiciasystem. Hungry people do not complain. That is why therole of civil society (NGOs, peasant groups, lawyers asso-ciations) in promoting rights and supporting claims of viola-tions is so crucial.

Without public interest litigation actions36 to defend theright to food of food insecure groups, ethnic groups andindividuals, we cannot progress towards making this righta reality. And this strategic litigation can only be done bycivil society organisations: it will never be supported bygovernments, international organisations, developed countries or their development departments. It is becoming in-

creasingly rare to receive support from private foundationsin developed countries37. This is because the grievance orclaim will usually hold a particular state responsible, andno external actor is willing to le a suit against any givenstate.

Nevertheless, public interest litigation should not be seenas the end of the process for guaranteeing human rights: itis just a means. In some cases, it has been seen that thesecollective actions are the spark that kindles social mobilisation or media coverage of a specic violation (Verna,2005). In that sense, litigation is not only important for thelegal benets it can generate for the right holders.

c) Diffused responsibility and contested classication

As explained earlier, the right to food is multidimensionaand requires intersectoral approaches that encompassseveral ministries and numerous government programmesSo, which ministry is responsible for hunger? In theory, mostof them partly and none of them wholly, which makes itdifcult to assign legal and administrative responsibilitiesIn practice, nobody wants to shoulder the sole responsibility of eradicating hunger. Even worse, in some countriesthe responsibility for providing children with adequatefood falls on parents rather than on the state. Thus, thosestates do not feel compelled to play a leading role torespect, protect or full this right does not seem to betheir responsibility. That is why it is so important that theright to food, as a responsibility of the state, is included in

36 Public Interest Litigation is a well-known judicial mechanism in USA, Canadaand India. Specially, in the latter, it has been used extensively to make progress in therealization of the right to food for famine-affected vulnerable populations. Furtherinformation can be accesed in the following websites: http://en.wikipedia.org/wiki/Public_Interest_Litigationand http://www.ielrc.org/content/a0003.pdf.37 Public interest litigation in favour of ESCR have experienced considerabledevelopment in India, especially linked to the Supreme Court of Justice and a broadinterpretation of the fundamental right to life.http://www1.umn.edu/humanrts/edumat/IHRIP/circle/justiciability.htm


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the constitution.

Another unresolved issue with even greater disagreementis the establishment of offences classied as violations ofthis right, which entails having to decide what type of vio-lations exist and which punishment will be applied to eachone. Globally, there has been little progress made in theclassication of crimes involving violations of ESCR, andeven less so in terms of violations of the right to food.

One of the oldest and best known cases on the classi-cation of food-related crimes is the so-called delito deextraperlo, which has existed in Spain for more than 50years and consists of penalising excessive rise in the pricesof essential goods (water, food, medication) in times ofwar, natural disasters and their aftermath. This crime wasclassied after the Spanish Civil War, when the country wassuffering terribly from poverty, hunger and the destructionof the productive and agricultural systems. During thisdifcult period, unscrupulous businessmen and salesmenappeared who took advantage of peoples needs to sellproducts much higher than the standard price before the

war. This was and is still considered to be a crime.

d) The absence of champions and informed lawyers

The right to food requires more leaders, more championsto present and explain it to politicians, the media andthe courts. Even though international bodies cannot liti-gate against states, those bodies can promote thedemandability (non-judicial) and justiciability (judicial)of this right. To date, unfortunately, both United Nationsbodies and international NGOs have paid little attentionto the justiciability of ESCR. The exceptions to this normare NGOs like FIAN International, FAO and UNHCHR, which

recognise the importance of this facet of justiciability notas the only one, but clearly as an important pathway torender this right operational.

In general, NGOs that defend the right to food have placedtoo much emphasis on the agricultural issue, with claimsrelating to land eviction or agrarian reform and less valueattached to the development of institutional frameworks(political and legal) and the justiciability of these viola-tions. It is worth highlighting the excellent efforts of FIANInternational in this respect, with numerous publicationsand reports on the subject (FIAN, 2007a; 2007b; 2007c;2007d).

e) Cumbersome bureaucracy and meagre international out-reach

Another issue that affects the justiciability of the right tofood is that collective cases have taken precedence overindividual ones, with politically-tinged actions that receivesensationalist coverage. This media coverage is positive forthe publics awareness although it may affect the due le-gal process. Proceedings have been long, bureaucratic andcostly and can hardly be paid for by the victims (poor, mal-nourished, low literacy levels). This long and heavy process

has often meant that cases are abandoned or are not sub-ject to active follow-up.

Until the Optional Protocol was signed and approved, claimsshall be resolved within the domestic sphere. So far, veryfew were taken to the Inter-American Commission, andthose cases were always related to other ESCR or to theright to life, as the right to food is not justiciable accordingto the Protocol of San Salvador. This right has provided fewoptions for ling claims and therefore the governments ofthe region have shown little interest in bringing this rightinto the legal sphere. Perhaps the situation will changefrom 2010 onwards, since the number of cases that use theright to food as a legal argument is expected to increase.

Considerations for progressing in the justiciability

of this right

The goal of this section is to present some concrete andspecic measures so that decision-makers and civil society activists can propose and implement mechanismsand venues for promoting greater and better justiciabilityof this law. The proposals that follow are neither the onlypossible actions that a country can take nor are meant todene a pre-established order or to exclude other possibleactions.

a) Creating a Law for the National Food and Nutritional Security System

Laws create and consolidate the institutional frameworkunderstood as the group of institutions, policies, prioritiesand budgets and the hierarchical relationships among institutions, the mandates and functions of each of them,social representation, the scope of operation, the prioriti-sation of actions and groups and the allocation of budgetsLaws are difcult to enact, but it is also difcult to repeathem and they help maintain the momentum of prioritiesand the institutional architecture that are so necessary for


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ghting hunger38. The process of building the legal frame-work for the right to food needs to be complemented by

the elimination of regulations that hinder the fullmentof this right and the harmonisation of national legislationwith the international system. With the aim of supportingthe construction of this type of law, there is now a manualfor creating the ideal law, prepared by FAOs Right toFood Unit, which considers the right to food in its entirety(FAO, 2009c).

b) Raising awareness among civil servants

When advocating the implementation of the right to food,there is a clear need to raise awareness among civil servants(members of parliament, civil servants, judges, magis-trates, human rights procuradores) about the relevanceof the rights-based approach, the protection of ESCR and,specically, the right to food. To do this, activities (semi-nars, meetings, gatherings) must be held aimed at creatinga critical mass of professionals that can help promote vigi-lance, the operating capacity and respect for this right asa weapon in the ght against hunger. The use of the rightto food as a legal argument in the case of Carmen Molina inGuatemala was fostered by the case judges attendance ata training session on the subject.

c) Training on the right to food

One cannot value what one does not know, even though thelack of knowledge of a law does not exempt us from com-plying with it. For this reason, human rightsprocuradorasand universities, along with international bodies and civilsociety organisations, should provide current and future na-tional leaders with solid training on the right to food. Justlike in the previous case, the key lies in creating a criticalmass of professionals in different sectors (teachers, law-yers, social and religious leaders, journalists, politicians)

38 Laws are more stable than government decrees. Countries like Bolivia, Panamaand Peru have opted for the latter. Argentina, Brazil, Ecuador, Guatemala, Nicaraguaand Venezuela, along with Mexico City, all have laws.

that will then help to disseminate a rights-based culturein policies and actions for ghting hunger and poverty. Inorder to encourage justiciability, training is more effectiveif it is provided to judges and lawyers (for example, anESCR module as part of their university training or jurisprudence based on real cases) and civil organisations that willater defend and promote these cases.

d) Establishing the National Rapporteur or Procurador for

the Right to FoodThis idea is only feasible in countries that suffer from highlevels of malnutrition, where the ght against hunger isa truly national priority (Haiti, Brazil, Guatemala and Bolivia). This person (or team), which is permanently andexclusively dedicated to observing and ensuring therecognition of, respect for and the realisation of the rightto food, could be part of the procuradura or ombudsmansofce or named as a special Procurador (Rapporteur) whomonitors the right to food as part of the ICESCR monitoringratied by 146 countries.39 A less ambitious option wouldentail teams working on ESCR in the ministries of justice

the parliaments and the quasi-judicial bodies can also bequite important.

e) Forensic certicates including severe acute malnutrition asa cause of death

So far, severe acute malnutrition is not an ofcial cause ofdeath in most countries. There is always another ultimatecause (cardiac arrest, kidney failure or pneumonia) whichin many cases arises as a direct result of a lack of metabolicenergy. If hunger is not accepted as a legal cause of death,it cannot be presented as proof in court and the utility ofthe extreme violation of the fundamental right to be free

from hunger is weakened. For this reason, we propose toinclude in the national legal systems severe acute malnu-trition as a legal cause of death and/or serious physical andpsychological injury. This issue must be dealt with by thenational forensic systems, which makes both training coroners and lawyers and working on the legal side with thedifferent parliaments necessary. The aim is to use theseforensic reports as evidence in criminal and human rightscourts. The existence of this legal cause of death would bea considerable boost to future justiciability cases.

f) The establishment of a court specialised in ESCR

As the violation of ESCR is a common cause inevery poverty- and hunger-related cases, and as theseissues affect a high percentage of the population in manycountries, the creation of courts (or specic judgesspecialised in handling violations of economic, social andcultural rights seems to make sense and responds to considerable public demand. The aim of these courts wouldbe to provide justice and ensure due process (acceptance,protection, treatment, sentencing and review) for the peo39The only countries in the region that have not ratied the ICESCR so far are

Antigua & Barbuda, Bahamas, Belize, Haiti, San Kitts & Nevis and Saint Luca. Theyare all members of FAO and voted in favour of adopting the Right to Food VoluntaryGuidelines


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ple whose rights have been violated. In some countries, aspecial court could even be set up to gather and monitorthe complaints that use the right to food as a legal argu-ment.

g) Civil society awareness

In spite of the progress made in many countries,considerable work still remains to be done in others. In

order to activate the activists, education and awareness-raising campaigns must be implemented for civil societyorganisations and support must be provided to nationalalliances against hunger and in favour of the right to food,so that they can act as platforms that pressure for recogni-tion, respect and the materialisation of this right. We havealready seen that only civil society organisations are poisedto move the justiciability of the right to food forward, asonly them have the technical and nancial ability to carryout strategic litigation in order to bring cases tothe attention of human rights organisations and nationalcourts. Moreover, those organisations are capable of de-fending a case before an international commission (United

Nations Commission on Human Rights or the Inter-AmericanCourt of Human Rights).

h) A national observatory on food and nutritional securityand the right to food

It could be supported the creation of a monitoring-analyticalbody, made up of civil society leaders, experts and nationaland international scholars, to monitor compliance with theICESCR and obligations related to the right to food. Eitherthis body could be part of a human rights institution or itcould be independent as a think tank. Its main goal wouldbe to become an impartial observer, independent from the

government, who would monitor the progress made andthe challenges to the fullment of the right to food for thecitizens of the country. There are already observatories ofthis type in Guatemala, Colombia and Brazil.

i) Monitoring indicators

National monitoring indicators can be drawn up aimed atmeasuring the recognition of, respect for and the fullmentof the right to food. These indicators should be specical-ly related to the legal and nancial implications relatedto the gradual fullment of the right to food, and eventhough they could also include indicators used to monitorfood security or nutrition, they should not be limited tothese. In this way, the following specic indicators can bementioned:

1. The number of grievances received and/or led relatingto violations of the right to food.

2. The number of deaths caused by acute severe malnutri-tion reported by forensic reports.

3. The percentage of the population that is aware of theright to food.

4. The percentage of public spending in food and nutritionsecurity per person or per food insecure household.

5. Minimum wages in comparison with the cost of the basicfood basket.

j) The creation of mechanisms that allow for public interestlitigation

The lack of specic procedures for ling grievances aboutthe violation of a constitutional right or a right included ina binding international treaty (such as the ICESCR) shouldnot serve as an impediment to judges or quasi-judiciabodies acceptance of previously recognised rights. Dismissing these cases is a breach on the due process and it fails tocomply with the obligation of providing justice, especiallywhen the right to food appears in the Constitution. In thissense, countries should establish administrative and legamechanisms to channel the claims related to violations of

this right and facilitate the procedure of lodging collectivelawsuits, which are those made by a person or institutionon behalf of a group or a third party whose rights havebeen violated and due to a lack of resources, knowledgeor ability cannot submit claims on their own behalf. Theseproceedings, known as public interest or strategic litigation, have as objective to create jurisprudence and legaprogress that will raise the bar in terms of the guaranteedminimum provisions and the states responsibilities for citizens rights.

Demanding fundamental social rights in fragile

democracies

None of the inherent elements in the right to food justi-es its national and international non-justiciability. On thecontrary, there are strong arguments in favour of its de-mandability thorugh different channels (administrative andquasi-judicial), and even of its justiciability via the legasystem. The rst one is the unquestionable fact that thisright is already justiciable in several countries and included in several constitutions, specic food security lawsand binding international treaties. The second one, by vir-tue of a fundamental principle of international law relatingto human rights, all people have the right to a suitable


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effective appeal when their rights have been violated.

In Latin America, there is a long tradition of recurso deamparo (a request for the protection of ones constitu-tional rights) in order to assert, as either a precautionaryor immediate action, maximum protection for an individualwhose rights have been violated or whose innocence hasbeen questioned. This recurso de amparo should be exer-

cised much more frequently in order to protect people whoare at risk of death from malnutrition and whose funda-mental right to be free from hunger has been violated. Theobligations to respect and protect, as well as the obliga-tion to grant the right to food in a non-discriminatory way,cause the fewest problems. The obligations of fullling thisright and facilitating its execution for everyone at all timesare more complicated from an operational, political andnancial standpoint.

Nevertheless, in order to guarantee that the victims of vio-lations of the right to food have effective access to justicein their country, something more than state-level and legal

recognition of its justiciability is needed. We need greaterknowledge of the right to food and the corresponding ob-ligations of the holders of this right. Lawyers need to betrained so that they are able to effectively respectand render operational this right, and judges should alsoacquire the necessary knowledge in order to understandthese allegations. In some countries, adopting measuresto guarantee that legal frameworks adequately reectthe right to food and the obligations of the state towardsthis right is highly recommended. There are several waysof moving towards a hunger-free Latin America and Carib-bean, and the legal approach to the right to food is oneof the most powerful. The still-incipient justiciability will

surely help achieve this.


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References

Acharya, S. (2007). National food policies impacting on food security: the experience of a large populated country,India. In Guha-Khasnobis, B., S. Acharya and B. Davis (eds.) Food Insecurity, Vulnerability and Human RightsFailure. United Nations University, World Institute for Development Economics Research, Helsinki, pp. 3-34.

Artigas, C. (2001). Derechos econmicos, sociales y culturales en Amrica Latina. Su situacin actual. Anales de lactedra de Fernando Surez. ECLAC, Santiago.

ECLAC (2007a). Cohesin social: inclusin y sentido de pertenencia en Amrica Latina y El Caribe. ECLAC, Santiago.

ECLAC (2007b). Balance preliminar de las economas de Amrica Latina y El Caribe 2007. ECLAC, Santiago.

Chen, S. and M. Ravallion (2008). The developing world is poorer than we thought, but no less successful in the ghtagainst poverty. Policy Research Working Paper 4703. World Bank, Washington, D.C.

COHRE (2006). Litigating Social, Economic and Cultural Rights: Legal Practitioners Dossier. Centre on Housing Rightsand Evictions, Geneva.

De Loma-Ossorio, E. (2008). El derecho a la alimentacin. Denicin, avances y retos, in Boletn ECOS no. 4,September-October. Centro de Investigacin para la Paz (CIP-Ecosocial), Madrid.

Dennis, M. J. and D. P. Stewart (2004). Justiciability of economic, social and cultural rights: Should there be aninternational complaints mechanism to adjudicate

Documents

Hunger in Court in Latin America