Hunger in court in Latin America 2010 JL Vivero

Hunger on court in Latin America

The justiciability of the right to food: challenges and achievements

José Luis Vivero Pol 1

Este documento refleja exclusivamente las opiniones e ideas de su autor y no representa en ningún caso la postura oficial de Acción contra el Hambre - España con respecto a los temas contenidos en su interior.

1 Regional Coordinator for Central America, Action Against Hunger – Spain. Managua. Email: hom-ca@acf-e.org.

A billion and counting…

In spite of the human suffering that accompanies malnutrition and the fact that it is one of the leading causes of infant mortality, hunger is still perceived as something natural and a congenital part of being human, an evil that has haunted us since the beginning of time that shows no sign of leaving us alone. This hunger, which by 2009 was punishing a billion people, is a constant fixture in the collective imagination of all peoples and is present in all traditions and cultures, both in popular sayings and in the origins of wars (García-Cebolla, 2009). Even though we have all the means, knowledge and financial and human resources to eradicate hunger from the face of the Earth, our perception as a species and our political priorities as a society are still determined by a long period of living with hunger, which has lasted since man became aware that he is the planet’s dominant species. Therefore, we see hunger as part of us, an unavoidable and natural calamity we have to live with. This rationale can explain in part why the number of hungry people on the planet has continued to grow in absolute numbers since 1990, and why many countries will fail to meet the two hunger-related indicators included in first of the Millennium Development Goals1. In a year when a record amount of grain has been harvested worldwide, we are also setting the dismal record of the largest number of hungry people in history. Hunger is not a problem of food production but a problem of access to food, and where it is produced, by whom and who can and cannot buy it. Hunger can no longer be considered a technical or medical problem; it is a rather fundamentally political issue.

The recent food crisis in 2007-2008 has increased the number of hungry people. According to the most recent estimates by FAO, by the end of 2009, there were 1.02 billion hungry people in the world (FAO, 2009a). These negative statistics shed new light to the World Bank’s review in 2008, when it raised its extreme poverty statistics to 1.4 billion extremely poor people2, most of whom are living in a situation of food insecurity.

Hunger and malnutrition are not just a moral disgrace and a humanitarian disaster they also violate a human right related to the right to life. Therefore, there are legal subjects – the citizens – on the one hand, and legal guarantors – the states – on the other that have legal, political and financial 1 Reduce by half the percentage of undernourished population and the percentage of children with overall acute malnutrition.

2 With the new extreme poverty line, established at $1.25 per person per day, the World Bank has revised its statistics and “discovered” 400 million more extremely poor people, which means that the world is poorer than it was previously thought (Chen and Ravaillon, 2008).

obligations towards the former. The message is gaining momentum: we need to place food at the core of agricultural and trade policies, especially due to the rise in food prices that hit the world in 2007 and 20083. On the other hand, positive obligations that guarantee that people have access to food under any circumstances are increasingly being considered as justiciable (Dennis and Stewart, 2004)4.

Human rights obligations in times of food crisis The right to food is essential for a dignified life and indispensable for the fulfilment of many other rights, such as the right to life, health and education. Food is important not only for physical survival but also for the full development of physical and mental capacities. Children that suffer chronic malnutrition during the first three years of life tend to grow less both physically and mentally, with noticeably smaller brains and less neural connections. This is, in turn, a lifelong burden, as physical and mental deficiencies cannot be recovered during other growth phases. This will mean that the chronically malnourished will have limited motor and mental skills, that they will be weaker and less intelligent, less innovative and bright and, therefore, will have lower chances of having better jobs and opportunities of escaping the cycle of poverty and hunger in which they live. Children who have suffered malnutrition in childhood find worse jobs and earn less money than those who have not (Hoddinot et al., 2008).

The right to adequate food is not limited to a diet with a specific amount of calories and nutrients necessary for survival; rather it goes beyond this, implying that all people should always have physical and financial access to food or the means to produce it. If people do not have the means to produce or acquire food, it is the duty of the state to progressively adopt the necessary measures and provide food or resources that will satisfy minimum needs to prevent people from dying of hunger or surviving in a situation of chronic malnutrition5.

3 In the same line, on the 10th of December 2008 the Cordoba Declaration on the Right to Food and the Governance of the Global Food and Agricultural Systems was presented with recommendations that were identified by a group of international experts as part of the “Cordoba Process” that would strengthen the right to food all over the world. The “Cordoba Process” began with the International Seminar on the Right to Food organised by CEHAP in October 2007 in Cordoba. The process continued at the Right to Food Forum organised by the FAO Right to Food Unit in October 2008. The Cordoba Declaration is the result of a second meeting in Cordoba organised by CEHAP on the 28th and 29th of November 2008. Finally, in October 2009 the Cordoba Group met again and made a “Call for Coherence and Action on Food Security and Climate Change”. See http://www.cehap.org 4 See also Policies against Hunger 7th International Conference, held in December 2008 in Berlin, whose central theme was “Food as a Human Right”. See http://www. policies-against-hunger.de/index.php?id=772.

5 In Latin America and the Caribbean, the dramatic situation of undernourishment

According to the specific clauses in the International Convention on Economic, Social and Cultural Rights (ICESCR), states have the obligation to progressively apply the right to adequate food by providing increasingly more resources and not allowing any kind of decline in the levels already reached. In other words, they should not reduce the amount of beneficiaries of food programmes without a strong cause or allocate less money each year to programmes for fighting hunger. To achieve this, they must adopt measures individually or with the help of international development aid and use all the resources available (with budget allocation as a priority) via all possible channels.

In this sense, Latin America is the region that has made most progress in terms of legal frameworks that promote and protect the right to food; seven countries already have specific laws relating to this subject and another ten have bills pending currently under discussion in National Assemblies (Vivero and Monterroso, 2008). Another issue that is becoming increasingly more relevant is the monitoring and awareness-raising work on the right to food, for which several countries already have annual monitoring reports produced by both civil society organisations (CSOs) and human rights institutions such as procuradurías6 and defensorías del pueblo (ombudsmen)7.

The Committee for Economic, Social and Cultural Rights (CESCR) has observed that the phrase “to the maximum of its available resources”, featured in the ICESCR, intended, according to those who wrote the Convention, to refer both to existing resources within a state and those that the international community makes available to it through cooperation and international aid. In a similar way, CESCR underlines the fact that, even in times of serious limitations on funding caused by adjustments, an economic recession or other factors, society’s most vulnerable members can and should be protected through the adoption of programmes that cost relatively little (United Nations, 1990).

The constitutions of several Latin American and Caribbean countries explicitly recognise or refer to the right to adequate food (Brazil, Colombia, Cuba, Ecuador, Guatemala, Haiti, Nicaragua and Paraguay), although there are countries where the responsibility for food is limited to vulnerable groups (children, elders). In other countries, the children’s parents and not the state are responsible for guaranteeing this right (Vivero and Ramírez, 2009b).

Pushing the Right to Food in Latin America forward: Governments, legislative assemblies and civil society Of the national tools that allow the right to food to be upheld, the two most frequently used and which have been most thoroughly developed in the region are the adoption of national food security policies or strategies and the enactment of laws that regulate the institutional framework for fighting against hunger (Vivero and Ramírez, 2009a). Both options, adopting legislative measures and national food security policies, are constantly repeated in the different documents related to implementing the right to food, beginning with the ICESCR (United Nations, 1990, 1998, 1999, 2000). CESCR recognises that legislative measures are highly desirable in many cases, and in some may even be essential. affects 53 million people, according to FAO’s latest figures (2009b).

Even though only the states are parties to these binding international treaties, all members of society are responsible for upholding the right to food; it is not the exclusive responsibility of governments. NGOs and CSOs have a very important international, national and local role to play, especially in terms of awareness-raising, training and the development of justiciability. On an international scale, many NGOs have made the right to food one of the focal points of their campaigns: ActionAid with HungerFree8, FIAN International and its campaign Face it, Act now9, and Prosalus, Cáritas and Engineers without Borders (Spain) with the campaign Derecho a la Alimentación Urgente (The Urgent Right to Food)10. Some participate in CESCR sessions and on other human rights forums regularly, placing themselves at the forefront of awareness-raising and monitoring. These groups are also very active in keeping the right to food on the agendas of international development and food security events.

At national level, NGOs are key actors in promoting the fulfilment of this right through their pressure and advocacy activities, preparing national monitoring reports, organising workshops, getting the issue into the media spotlight, training leaders and their essential role in driving the justiciability of the right to food forward. NGOs and CSOs are the only institutions with the ability, knowledge and freedom to act needed to support strategic litigation or file collective lawsuits in the public interest related to the right to adequate food. In the local sphere, the NGOs re6 “Procuraduría” or “Defensoría del Pueblo” are both state institutions that are separate from the government that report to parliament and supervise compliance with and violations of human (civil and political and social) rights. Their names vary according to the different Latin American countries.

7 For a series of reports on fourteen countries in the region, visit the Iniciativa América 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 to implementing and realising the right to food. See http://www.fian.org.

10 See http://www.derechoalimentacion.org/webkwderecho/index.asp.

cord and report the violations committed against the right to food and the right to be free from hunger, and they inform and explain to hungry people whose rights have been violated, given that in most cases, they do not even understand that being free from hunger is a right (if they do, it’s unlikely that they will be able to file a grievance and take legal action).

Furthermore, it is important to highlight the role of the FAO, the United Nations organisation in charge of promoting the legal and political development of this right for more than a decade. The FAO Rome Right to Food Unit11 has worked on a technical corpus that sustains the national development of the right to food in order to contribute to progress in monitoring, justiciability and legal framework development. This unit has also broadened the right to food scope so as to embrace other aspects of underdevelopment, such as the marginal situation of indigenous peoples and women, its relationship with biofuels and the monitoring of public spending aimed at making this right a reality. In the region, the Iniciativa América Latina y Caribe sin Hambre (Hunger-Free Latin America and Caribbean Initiative) is playing a leading role that is key to promoting more legal frameworks, justiciability and parliamentary support to the right to food.

The region’s hungry democracies: How many hungry people are acceptable for a democratic government?

Democracy is more widespread than ever in Latin America and the Caribbean. Democratic governments except for Cuba rule all the region’s countries. This process of re-democratisation in the post-authoritarian era in Latin America was characterised by stripping the content of the concept of “democracy” in its broadest sense (which involves a development goal) down to another that refers to the electoral governing system (Roitman, 1995). Now, these democracies are suffering a crisis of legitimacy and questioning in the region as never before in their short history12.

The prevailing model of democratic transition has disappointed citizens in terms of its ability to reduce inequality and eliminate hunger and extreme poverty. These electoral democracies have invested all their energies into reinforcing and ensuring first-generation human rights (the civil and political rights), and have postponed economic, social and cultural rights (ESCR), the so-called secondgeneration (if not second class) rights for the future. In terms of guaranteeing minimum rights such as living with dignity, which are materialised in the right to adequate food, housing, health, education, work and the development of one’s own culture, Latin American democracies generally fail.

It has been sustained that the democratic electoral sys11 See the FAO Right to Food website: www.fao.org/righttofood/ 12 In 2002, the Latinobarómetro highlighted the fact that only half of those interviewed preferred democracy to any other form of government (ECLAC, 2007a), while in 2004 the UNDP showed that more than half of those surveyed preferred economic development without democracy to democracy without economic development (UNDP, 2004).

tem’s failure to improve the socio-economic status of its populations has led to “failed democracies” that do not reflect the basic principle of democracy; that is, to attain the wellbeing of its people. The protection of ESCR should be among these principles, 13as they are determining factors in the lives of all people. Guaranteeing human rights for all the nation’s inhabitants, and especially ESCR, is a pre-requisite to citizenship in its fullest sense. And democracies are political systems formed by citizens. Those who suffer from malnutrition and whose right to food has been violated have no interest, reason or energy to develop other facets of their citizenship. They do not feel part of a democratic system that neglects them to the point that it fails to cover their most basic vital needs. Only when their basic rights are guaranteed can individuals participate in both their own destiny and that of the society where they inhabit: first me, then my family and finally my group. This natural law of survival also applies to food.

In this sense, it is difficult to talk about consolidated democracies when almost 40% of the region’s population lives in poverty, with 71 million extremely poor people and 53 million hungry people; when one in four young people remain outside the labour market and the education system; when maternal and infant mortality rates do not correspond to the level of economic development; and when there are 120 million Latin Americans who have no access to sanitation. How can starving, sick and illiterate people be expected to reach any kind of degree of political participation, manifested through voting?

Indigenous groups, a demographic majority in some countries, with their strong links to the land and traditions, reflect better than anybody else inequality in Latin America and the disenchantment with the democratic and economic systems that rule the region, which fail to guarantee their rights as citizens14 or distribute the benefits of sustained 13 Such as political representation, free elections, equal rights, individual freedoms, responsibility and peaceful conflict resolution.

14 Two of the most basic rights are the right to adequate food and the fundamental

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

What is justiciability?

A right is only a right when it can be claimed. The signatory states committed themselves to take measures to formalise the rights recognised in the ICESCR (art. 2). A similar provision appeared in the Inter-American Convention on Human Rights, where it is suggested that legal appeals should be made in order to demand this right (art. 26). By ratifying those conventions, states are obliged to create conditions that will guarantee the full validity of ESCR progressively and to allocate enough resources. Nevertheless, this should be immediately implemented with vulnerable groups, as it is always the state’s responsibility to protect this right.

It is clear that, as international agreements highlight, each state is sovereign for defining the measures that will allow progress in the fulfilment of the ESCR (Artigas, 2001).

However, the debate on the mechanisms that would make the guaranteeing of the right to food and its justiciability possible is still pending.16 The fundamental issue that affects the fulfilment of the right to food is having the possibility to claim against violations of this right and being listened to by a judge or jury, which will later hand down a ruling that will have repercussions either for the affected individual or for the state as a whole. In some cases, the hungry person claiming the right might even receive compensation for this violation through monetary payment or payment in kind. This is known as justiciability.17 According to FAO (2004), justiciability is “the possibility of a human right, recognised in both general and abstract terms, to be invoked before a judicial or quasi-judicial body that can first, determine if the human right has or has not been violated in a particular concrete case presented before it, and second, decide on the appropriate measures to be taken in the case of violation.” Justiciability is the materialisation of the state’s obligation to “be responsible for a right before citizens” through judicial channels.

Some of the specific actions regarding this issue include classifying the crime, identifying those responsible for violating the right, gathering evidence and proof, presenting the responsible body to the legal system, sentencing and setting 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 from 2003-2007 (ECLAC, 2007b).

16 Promoting the justiciability of the right to food is one of the FAO’s priorities in the region, considering the importance of making progress in jurisprudence, which will allow this right to become a reality for all Latin Americans.

17 The term “demandability” is often used in the same way as “justiciability”, even though the implication is not the same. Demandability comes from the fact that proclaiming 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 fulfilled. Justiciability is a more specific concept and should be understood as a legal or judicial demandability in itself, where a formal explanation of an offence or violation of a specific right is sought.

The justiciability of this right, even though it is very important, is not the only channel for making claims nor is it always the most effective. Nevertheless, the courts are the ultimate guarantors of human rights and they should be prepared to take all of these rights into consideration (FAO, 2008a). Justiciability has other channels through which it can become effective, such as the mechanisms for making administrative claims in ministries and the public administration, and the quasi-judicial channels that are represented by the increasingly consolidated human rights institutions such as ombudsmen and procuradorías, which are slowly beginning to monitor ESCR as part of their work. Until now, both of these channels for monitoring and guaranteeing the right to food have had a fundamental role to play, at a time when there is little formal jurisprudence on the matter.

The different protection mechanisms offered by the international legal system and the existing dichotomy between the national and international spheres render the possibility of making this right justiciable more complex.18 A right that is not known cannot be demanded, and a right that is known but which the state refuses to allow to be demanded is not exercised either. And this is what has happened for years in the region: no one can complain about dying from hunger, even though their rights are being violated. Thus, it becomes clear that many states feel no obligation to guarantee the right to food in their territory, as they are somehow protected by the concept of the progressive nature of its implementation.

Is food a right and hunger a justiciable violation of this right?

One of the main points of the debate about t he justiciability of social rights is whether or not they are justiciable.

On an international scale, there remains considerable controversy in terms of the justiciability of ESCR. Many countries reject the idea of making them justiciable because this could interfere with state sovereignty (Kent, 2008).

The argument that is gaining momentum, thanks to recent progress in jurisprudence and academic discussions, is that the right to food is manifestly justiciable through its condition as a human right closely linked to the right to life and because it is included in a binding international treaty and recognised in national constitutions and the general principles of law.

The UNCESCR published the following opinion on this matter in 1998, through the General Comment 9, in which it makes broad reference to the internal application of the ICESCR. “Thus the Covenant norms must be recognised in appropriate ways within the domestic legal order; appropriate means of redress, or remedies, must be available to any aggrieved individual or group, and appropriate means 18 The following can be used as examples: even though the justiciability of ESCR can be found in the Inter-American Convention on Human Rights, according to the Protocol of San Salvador on ESCR, the only rights that can be claimed in the Inter-American Court are the violation of the right to join a trade union and the right to education. The option of making a complaint relating to the right to food is expressly excluded.

of ensuring governmental accountability must be put into place” (United Nations, 1998). Furthermore, General Comment 12 on ICESCR stated that “any person or group who is a victim of a violation of the right to adequate food should have access to effective judicial or other appropriate remedies.” These statements reveal the clarity of the ICESCR in terms of reaffirming the demandability and justiciability of the right to adequate food and the fundamental right to be free from hunger – the minimum threshold for guaranteeing the right to food.

Regional legal tools contain similar provisions concerning the right to appeal for the rights contained in the treaties.19 Two examples are art. 25 of the Inter-American Convention on Human Rights and art. 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. A specific issue affects Latin America related to the Protocol of San Salvador on ESCR, which was added to the Inter-American Convention on Human Rights. The protocol includes a brief mention of the right to food in art. 12 and 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 case of violations of these rights, only workers’ right to organise in trade unions (art. 8.a.) and the right to education (art.

13) are analysed. Therefore, they are the only justiciable rights 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 the ability to submit cases of violations of the right to food to the IACHR. For this reason, the 53 million hungry people in Latin America and the Caribbean whose right to be hunger-free has been violated do not have the possibility of appealing or filing a grievance in an international body that protects human rights.

The same holds true in Africa, where there is no option for complaining about the violation of the right to food to the African Commission on Human and People’s Rights20, underlining the sad paradox of a continent where one-third of the population is still malnourished and the number of hungry people continues to grow every year21. Fortunately, this situation of defencelessness is close to becoming obsolete and a historical change will take place once the ICESCR’s Optional Protocol comes into force.

The Optional Protocol to ICESCR will promote justiciability on an international level…

On the 10th of December 2008, the United Nations General Assembly adopted the Optional Protocol to ICESCR, which provides the United Nations CESCR with additional au19 ‘Appeal’ should be understood as a legal or judicial mechanism through which a right can be upheld or its violation prevented, redressed or compensated.

20 African Commission on Human and People’s Rights. See http://www.achpr.org.

21 Since 1990, the number of hungry people in Sub-Saharan Africa has continued to 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 rights recognised in the ICESCR at a national level. This protocol is 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 all human rights are made official. From now on, victims of ESCR violations will have an international mechanism that will 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 the use of these national mechanisms takes too long (VillanDurán, 2009). In this way, international law is made more accessible to millions of excluded persons, groups, communities 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 and groups who are the victims of a violation of the right to not suffer from hunger should have access to suitable legal appeals procedures and other appropriate procedures on a national and international level. Furthermore, all the victims of these violations have the right to proper compensation, which can be in the form of restitution, damages, compensation or assurances of non-repetition. Moreover, the person whose right has been violated can file a grievance 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 is not real, or if it is, for providing the necessary explanations and justifications. The burden of proof, in the case of ESCR violations, falls upon the guarantor state. Now we need states to translate their verbal commitments into concrete reality and adopt the Protocol. Once the tenth signatory state ratifies the Protocol, it will come into force. … Although the twofold dimension of the right to food affects its justiciability Although it could seem easy to launch the justiciability of a right as fundamental as food, without which one dies and any other human rights make no sense, up until now there have been numerous legal, methodological, financial and even sociological problems that have meant that the legal implementation of the violation of this right, which happens to millions of people in Latin America on a daily basis, has been scarce in ordinary courts or the human rights arena in general. The right to food is a right whose realisation depends on many factors. It is linked to other human rights, from the right to property and access to justice to the right to employment, information and education, among others.

The right to adequate food has two dimensions according to General Comment 12, which explains its scope within the ICESCR. The fundamental right to be free from hunger, understood as the minimum threshold in terms of the right to food, is described as the minimum amount of energy that our body requires to undertake its functions. Eating less than this threshold is therefore a threat to life22. For this 22 Based on the extensive experience acquired, the ESCR Committee is of the opinion that it is the state’s responsibility to have a minimum obligation of ensuring

tion, as there are many legal subjects whose situation is not as dire as those who are dying of hunger.

Both dimensions have different human, financial and legal implications, even though they are only now beginning to be differentiated. At present, in the countries of the region, the constitutional protection of the right to food does not distinguish between these two dimensions, nor does it establish which aspects are justiciable and which are not.

There is considerable fear among human rights activists that the excessive development of one dimension will end up weakening the other, especially if all efforts are made to strengthen the dimension of being free from hunger, to the detriment of that related to adequate food. reason, it is considered to be fundamental and implicitly linked to the right to life (Eide, 2005). Nevertheless, both its regulatory development and the characteristics of demandability and justiciability, and the definitions of minimum thresholds and immediate ‘recursos de amparo’ (the possibility of claiming protection for one’s constitutional rights) for those who suffer from hunger have not been fully developed, which in turn leaves this fundamental right in a kind of legal limbo and in no way facilitates the progress of jurisprudence (FAO, 2004; Restrepo-Yepes and Correa-Montoya, 2007). Compliance with this right should be considered immediate, compulsory and free from legal loopholes that allow responsibilities to be avoided by claiming budgetary limitations or gradual implementation.

In fact, the Limburg Principles establish the existence of ESCR obligations that must be met immediately23, regardless of states’ financial capacity, as well as obligations that must be complied with progressively (FIAN, 2007a).24 The second dimension is the right to adequate food for all human beings, in terms of both quantity and quality: those who are suffering from hunger as well as everyone else.

This right implies that the food must be produced in a sustainable way, that it must be properly processed, it must be harmless and nourishing and chosen by the consumer according to his/her taste and food preferences, which are defined by his/her cultural patterns and affordability. All of these elements show a series of aspects based on the idea of food consumption that goes far beyond just getting nourishment and eating the calories needed to maintain one’s body active. This second dimension is should be gradually implemented and is related to the progressive nature of the state’s social spending. In terms of priority, it should not be legally demandable for the entire populathe satisfaction of at least the essential levels of each right. For example, a state where a large amount of individuals are deprived of essential food prima facie is not fulfilling its obligations in terms of the Convention (United Nations, 2000). If the Convention must be interpreted in a way that it does not establish minimum obligations, it would, to a great extent, lose its raison d’être.

23 These types of obligations do not require a period of time for their execution and they can be considered obligations on results. Some examples include the obligations of non-discrimination, judicial protection, adopting appropriate measures for upholding a right and eliminating all legislation that affects the fulfilment of ESCR. 24 These obligations require a period of time to fulfil the right in question. They involve adopting measures whose goal can only be reached after the state begins the activity that is designed to fulfil them. Obligations on gradual implementation are traditionally categorised as part of the obligations on conduct.

What can the hungry demand from their governments?

Even though it is important to remember that most national constitutions do not include the text of the ICESCR verbatim, it could be useful to remember the specific obligations that the Covenant imposes on state parties. While it is recognised that the full realisation of the right to food can only be achieved with time, and that it depends on the availability of resources, the ICESCR’s state parties have shown their commitment to international responsibility for this right. National responsibility will depend on internal legislation, specifically the international treaty system, constitutional regulations, legal principles and political responsibility. States cannot postpone their actions indefinitely, even if rights must be realised gradually over time and are limited by the amount of resources available.

Having clarified the content of the right to adequate food in General Comment 12, an overall definition is made of the obligations of ICESCR state parties in terms of this right and the other ESCR. In this way, the following kinds of state obligations are used to examine and evaluate justiciability: the obligations to respect, protect and fulfil this right (the latter includes the obligation to facilitate and provide).

Respect. The obligation to respect the right to adequate food obligues states to not adopt measures that will prevent individuals and/or groups from using their own means to fulfil this right. From a conceptual point of view, this establishes a negative, binding obligation, which would be violated if the state were to authorise, impose or tolerate in any way policies, programmes and/or official measures that would destroy the people’s source of food – such as crops or food stocks – without a valid reason or reasonable compensation.

Protect. The obligation to protect demands that states guarantee that private entities – companies or individuals – cannot deprive other individuals of access to adequate food. These measures include the coercive enforcement of the legislation in force and guarantees of making these entities subject to the law that protects society’s most vulnerable groups against external interference. Another example could be the non-protection of tenants illegally

The obligation, therefore, consists not of supplying food to each and every person, rather to those who cannot look after 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 has been violated. Even if he/she has died of hunger, we cannot necessarily make a claim that the ICESCR signatory state has failed to comply with the binding legal framework. We will now explain the exact scope of an ICESCR signatory state’s responsibility towards its citizens.

evicted from their farmland by other individuals or companies; that is, not protecting the individual right to food through interference or a lack of respect by third parties, which could also be justiciable.

Fulfil (facilitate). The obligation to fulfil the right (facilitate its implementation) means that the state must proactively carry out activities in order to strengthen people’s access to resources and means that will guarantee their subsistence, including their food security, and their use of these resources and means. Regarding the examples of measures to facilitate access to food, examples include education and training, agricultural reform, support policies for urban and rural development and information about markets.

With regard to these obligations, the state usually has considerable leeway. The most appropriate issue to be considered when adopting a judicial or quasi-judicial resolution should be first whether the state has “taken measures” to facilitate access to food by the affected person or groups, and, second, whether these measures are reasonable or appropriate, considering the circumstances (political and economic situation in the country). Consequently, the court should determine if measures have been adopted and whether they are reasonable or adequate. In conclusion, the obligation to facilitate could be considered the most complex issue to be resolved by judges. In these cases, it would be important to examine the obligation to fulfil this right (facilitate its execution) from the perspective of the budgetary repercussions when the state sets its priorities.

Fulfil (provide). According to the CESCR, when an individual or group cannot, for reasons beyond their control, enjoy the right to adequate food with the means to which he/ they have access, states have the obligation to fulfil this right directly (obligation to supply) within the limit of the resources to which they have access (maximum available resources). This obligation also concerns the victims of natural catastrophes or other types of tragedy.

For legal and/or judicial purposes, it can be useful to establish a distinction between insufficient or inadequate access to or use of food, which results in malnutrition or undernutrition, and the cases in which these can be blamed on the violation of the right to food of the person in question. While we can almost certainly say that a person suffering from chronic malnutrition can state that his/her right to food and nutrition has not been upheld, for a justiciable violation to exist, according to the ICESCR and subsequent general comments, the following must be taken into account: whether the state has the obligation to adopt certain regulations and to what extent, and, when applicable, the state’s possible inability to adopt measures relating to upholding this right or other possible arguments of this kind in its defence.

Within the context of justiciability, a clear distinction is made 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 when a state adopts measures calculated rationally to achieve enjoyment of the right to food. Possible violations of this right can be determined by the competent body.

For this reason, the mere existence of malnutrition in a country does not necessarily prove the existence of a violation of the right to food (FAO, 2004). If it were this evident, the more than 120 countries with hungry, malnourished or undernourished people would all be subject to claims for violations of this right. However, it has already been mentioned that there is little jurisprudence on this matter.

Nevertheless, if the both income and malnutrition levels in a country are relatively high, this could indicate that the state it not adopting the necessary and adequate measures to the maximum of the available resources. Nevertheless, when a government allows hunger to exist in a country, the most essential factor is the immediate solution rather than any kind of punishment (Kent, 2008).

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

tions, 2008). Frequently, one state institution proposes that the right to food be protected and promoted, while others adopt decisions or apply policies that directly contradict this right. One clear example of this situation in our globalised world is the commitment to basing development on rights and the adoption of trade policies that contravene human rights in other countries. Consistency could be achieved if human rights were placed at the core of government policy and if policies and programmes that negatively affect the right to food of inhabitants in other countries were changed, as suggested in the Vienna Declaration and Programme of Action (1993).25 Different types of violations of the right to food Between 1995 and 2005, FIAN recorded several cases of violations of the right to food in Brazil, Ghana, Honduras, India and the Philippines. These cases were analysed by De Loma-Ossorio (2008), who identified violation patterns, organised around the state’s obligation to respect, protect and promote and its obligation to guarantee non-discrimination. a) The obligation to respect: The most common kind of violation monitored by NGOs such as FIAN International is forced eviction from farm lands by the state without suitable compensation, resettlement or rehabilitation.

Forced evictions are usually the result of major development or infrastructure projects (dams, mining, plantations for biofuels or large estates). The root of this problem usually lies in a clash between landless peasants and private owners. b) The obligation to protect: The most frequent type of violation is insufficient protection against the activities of multinational corporations and single-crop agribusinesses that use pesticides and pollute peasants’ sources of livelihood, whether for biofuels or export crops. This also includes mining activities that pollute the water and land or negatively affect the phreatic level of wells. Another recurring case is the inadequate protection of land tenancy, in terms of both private ownership of small farmers and collective ownership by ethnic groups (common rights that are included in many bodies of laws in Latin America)26. Illegal dismissals and the denial of salary or benefits are also mentioned in some cases as a violation of the right to food.27 c) The obligation to promote: The violations identified under this category are related to failures to implement action plans for agrarian reform or non-implementation or discrimination. Another increasingly frequent example, due to the abundance of programmes, is the malfunctioning or misappropriation of funds in conditional cash transfer programmes.

25 In the Vienna Declaration and Programme of Action (1993), all states recognised that the protection of human rights is the “first responsibility of governments” (United Nations, 1993).

26 See the jurisprudence of the case of the Yakye Axa indigenous community versus the State of Paraguay presented later on.

27 See below the case of Carmen Janeth Molina in Guatemala.

d) The obligation to guarantee non-discrimination: Women, children and ethnic minorities tend to suffer more serious hunger than other groups as a result of the discrimination they suffer when accessing food or productive resources. It is important to highlight the fact that women who belong to minority groups suffer even greater discrimination due to the additional impact of gender discrimination. There is a saying in the region that describes hunger as having the face of a young indigenous woman, which is a fairly accurate reflection of the latest statistics.

Another aspect that deserves special comment is that in certain cases related to the violation of the right to food, the implementation of immediate redress and the provision of non-repetition measures in the future might be more reasonable and effective than imposing sentences and/or punishments on those responsible for the offence (Kent, 2008), such as in the case of the anomic state, countries at war or those engaged in civil conflict, or very poor countries that are suffering a serious lack of food. The idea of helping governments to meet their failed obligation instead of legally convicting them seems to have more chances of success and is also contained in the ICESCR and the new Optional Protocol.

Analysis of jurisprudence related to the right to food The purpose of the justiciability of the ESCR is the effective judicial protection of the victims; in other words, the recognition of the right in the specific case, the declaration of its violation and the order to provide compensation, reparation, satisfaction and the adoption of measures to ensure that it does not happen again (FIAN, 2007b). At the same time, the only purpose of effective protection is to guarantee the complete fulfilment of the right.

All levels of obligation relating to the right to food can be and have been considered justiciable. Nevertheless, the obligation to respect and protect and the obligation to award the right to food in a non-discriminatory way are the least problematic aspects (FAO, 2004). Certain factors, such as the country’s standard of living, the definition of the poverty line, the resources available and the existing

programmes, should be taken into account by the courts or quasi-judicial bodies when defining or ruling on cases of violations of the right to food. However, something more than state-level and judicial recognition of justiciability is required to guarantee that the victims of violations of the right to food have effective access to justice on a national level. Greater knowledge of the right to food and the corresponding obligations of the holders of this right are required. Lawyers should be trained so that they are able to effectively defend this right, and judges should acquire the necessary knowledge to be able to rule on these allegations. In fact, given the current status of the justiciability of ESCR, the role of the judge is very important, as the acceptance, denial or ruling in a case like this depends on his/her knowledge, sensitivity and interpretative skills, bearing in mind the lack of jurisprudence and the broad leeway for interpretation of the written legal regulations.

Today there is little jurisprudence available relating to the right to food, although there is a growing corpus relating to other ESCR28 which clearly justifies the potential for the national and international justiciability of these rights (Verna, 2005). As the amount of ESCR-related jurisprudence increases, the international courts and quasijudicial bodies play a very active role in the defence of states’ positive obligations, especially when they fail to implement programmes, laws, policies or budgets, or if any kind of discrimination has taken place or an individual has been deprived of his/her life due to a violation of the right to health or food.

To date, there have been few cases where national courts have issued rulings based on the regulations relating to the right to food (FAO, 2006). Nevertheless, there are some positive signs of progress, such as the strengthening of judicial and other types of mechanisms and the slow but steady advance of jurisprudence. Moreover, the procedures through which effective corrective measures can be adopted in cases of violation of the right to food are expected to become increasingly clear at national as well as international level, once the Optional Protocol enter into force.

The examples of India and South Africa The Supreme Court of India passed a resolution through which food grain must be supplied to the elderly, the sick or the disabled, to destitute women and men at risk of death from starvation, to pregnant or breastfeeding women, and to destitute children, especially when these individuals or their relatives do not have sufficient financial resources to maintain themselves. The obligation to supply can be justiciable in the country (Acharya, 2007; Gonsalves, 2007).

According to the Supreme Court, the fundamental right to life should not be seen solely from the perspective of the 28 There are databases on this legal corpus available from various organisations, such as 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 the Centre on Housing Rights and Evictions (COHRE) on its website www.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 that will allow citizens to maintain a dignified existence (Verna, 2005). This extension of the notion of the right to life, thanks to public interest lawsuits with positive rulings that the state of India had to comply with, has enriched the jurisprudence on the right to food with expressions such as “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 country’s borders (COHRE, 2006) are the case of famine-induced deaths in the Indian state of Orissa (2003). The case brought to court by the NGO People’s Union for Civil Liberties against India (2003) for keeping food in silos despite numerous deaths from hunger in the state of Rajasthan. In the former, India’s action manuals violated the right to food, which is an essential element of the right to life as captured in art. 21 of the constitution, by considering hungry people to be simple beneficiaries of humanitarian aid and not right holders. In the latter, the Court’s decisions included establishing the idea that all malnourished people who do not have the ability to feed themselves independently (the elderly, widows and disabled people) would receive a free grain ration and that the government should progressively implement the provision of food in all schools (Guha-Khasnobis and Vivek, 2007).

Another good example of justiciability comes from the South African Constitution, which provides a relatively novel interpretation that does not distinguish between categories of rights and stipulates instead that all recognised human rights should be respected, protected and fulfilled (Tveiten, 2005). This includes key social rights, such as the right to food, water, housing, health and social security. When appropriate, certain rights can therefore be fulfilled, including the right to food, in line with the resources available and through the adoption of reasonable measures. Some judicial decisions, such as the well-known case of Irene Grootboom and the right to housing, establish the competence of South Africa’s national courts to set, immediately and using all of the available means, certain minimum thresholds for ESCR, which does not contradict their gradual implementation. In several countries in Latin America, courts have ordered governors, for example, to provide HIV/AIDS treatment immediately.

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

Examples from Latin America As can be seen in a FAO regional report (FAO, 2008a), since

2003 a remarkable progress has been made in the legal and institutional framework for fighting against hunger in the region. The driving force is the guarantee of the fundamental right to be free from hunger and the right to adequate food for all of the region’s citizens. The issue of the fight against hunger has been gradually included on national public agendas. What began as the Lula da Silva’s leading political idea during the presidential campaign, the Fome Zero has gradually become a hallmark for governmental and NGO actions in the region, from Mexico and the initiative to make the right to food part of the federal Constitution to Argentina and the creation of the first food security law (2003) that includes the right to food. Additional to this, civil society organizations in many places have started to produce progress reports about the issue29, and news items mentioning the right to food are being published more and more frequently in the media.

One way to protecting the right to food is by including it in the State Constitutions. In this sense, countries can be classified in three groups, according to the type of protection they guarantee for the right to food: 1. Constitutional provisions in which the right to food is directly mentioned and is applicable to the entire population: Brazil, Ecuador, Guatemala, Guyana, Haiti, Nicaragua, Panama and Suriname.

2. Protection of the right to food of a specific group: Bolivia, Brazil, Colombia, Costa Rica, Cuba, Ecuador, Guatemala, Honduras, Panama, Paraguay, Peru, Dominican Republic and Uruguay.

3. States signatories of the ICESCR, in which the treaty is applied directly through the constitution: Brazil, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Nicaragua, Paraguay, Peru, Suriname and Venezuela.

Nevertheless, it is worth noting that in some countries the only approach to protection has been the constitutionalisation of justice relating to ESCR by including the different rights in the constitution although those rights will not be later on developed into criminal or civil laws. Other means of protecting ESCR have been explored by countries like Argentina, where the Constitution was modified in 1994 so as to facilitate the protection of ESCR and to create a mechanism of ‘Amparo Colectivo’(collective protection) that can be presented by a private individual to protect a group against collective violation. International treaties, such as the ICESCR, have therefore been turned into binding national laws.

In the case of Brazil, it has been shown that the submission of collective grievances relating to the right to food through administrative and quasi-judicial channels can be a powerful tool for the right holders, and this has generated a growing commitment by the duty bearers to fulfil their 29 Some can be reviewed on the website of Iniciativa América Latina y Caribe sin Hambre (Hunger-Free Latin America and the Caribbean Initiative): http://www.rlc. fao.org/iniciativa/infda.htm

human rights responsibilities. This is especially true if the rulings on the grievances are monitored by human rights organisations or ombudsmen, who can supervise whether the penalised institutions comply with them or not. At the same time, speedy access to grievance mechanisms in cases of state obligations that have not been met within the corresponding timeframe is an essential element in the process of justiciability (Valente, 2007).

We will now present a brief description of four cases of the justiciability of the right to food in Honduras, Guatemala, Paraguay and Argentina. In spite of the lack of jurisprudence, the absence of an Optional Protocol for ICESCR and the barriers put in place by the Protocol of San Salvador, Latin America has seen a series of cases where the right to food is used as a legal argument to defend social rights.

There is evidence of other very recent cases in Brazil and Colombia, but not having enough knowledge prevented us to provide a comprehensive summary of them. These four cases yielded diverse results, three under national and one under international jurisdiction. The right to food is associated with the right to life in two of them and the fundamental right to be free from hunger (Argentina) only in one, which 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 ruling was in favour of the plaintiff, who used the right to food as the legal argument. It is a ruling passed by the Sectional Court of Appeal in San Pedro Sula on the 12th of November 2007, which is rightly pointed out as historic.

In a situation of agrarian conflict between the peasant group “Brisas del Bejuco” and a local landowner, the peasants were accused of misappropriation. The Criminal Court of First Instance ordered the immediate eviction of the accused. Under the threat of eviction, the leader of the peasant group told their lawyer about a training session he had attended on the right to food. The lawyer, who was unaware of the issue, was given the documents discussing the issue distributed during the training session and presented a ‘Recurso de amparo’ (appeal for the protection of the subjects’ constitutional rights) in order to stop the eviction, basing his defence on the state’s obligation to protect the right to food. In its ruling, the Sectional Court of Appeal of San Pedro Sula recognised the lawyer’s argument, making broad reference to ICESCR and General Comment 12, and concluded that “a human drama is implicit in any eviction, creating serious violations to human rights” and therefore “the eviction order should be invalidated and rendered ineffective.”

This was the first time in Honduras that a legal ruling was based on the validity of the ICESCR. For this reason, this ruling is of great importance in terms of promoting the justiciability of the right to food in the country. It is also a paradigmatic case of jurisprudence that will surely serve as a point of reference for other legal disputes within the context of agrarian conflict in Honduras and in other countries

in Central America. Furthermore, this case shows quite clearly the importance and achievements of the training on the right to food received by justice workers and the right holders. b) The Case of Carmen Janeth Molina, Quezaltenango, Guatemala (2006) Even though there was no happy ending for this Guatemalan case, it can be used as an example of how the right to food can be used as a legal argument in different labour cases, whenever a family’s food security is in danger. This is the first case regarding the justiciability of the right to food in Guatemala, a country that suffers from chronic child malnutrition rates of 54%, and it revealed the fragile structure of the organisations in charge of ensuring that social rights in the country are fulfilled, even though Guatemala signed and ratified the ICESCR more than 20 years ago.

The trial judge in the Department of Quetzaltenango argued, in the final ruling of a labour case, that a cleaning worker’s right to food had been violated as a result of unfair dismissal and the deliberately-extended grievance process, with the aim of wearing down the plaintiff. Carmen Molina worked as a cleaner and porter when she was fired.

At that time, this was a typical case of the employer’s failure to protect his worker, as the company refused to pay her salary, which, in turn, led to a flagrant violation of her right to food, given that the company’s lawyers attempted to drive her to despair so that she would drop the case.

To do this, they made use of appeals and arguments that prolonged the hearing and delayed the final verdict, with more than 24 months spent on the proceedings. During this time, Carmen Molina stopped paying the rent on the room she rented and both she and her children suffered from hunger on several occasions, as her only livelihood was the job she had lost.

The judgement cited art. 11 of the ICESCR, in which the signatory states recognise that everyone has a right to food.

Moreover the covenant is complemented by art. 46 of Guatemala’s Constitution, which became an ordinary law with the Decree No. 32-2005, the Food and Nutritional Security Law that ratifies the right to food for all citizens.

When the ruling was handed down with a fine of $7,000, the penalised party lodged an appeal to the Supreme Court, claiming inconsistency and favouritism. The appeal was granted. The amount of the penalty spurred the company to hire a good team of lawyers for its defence. At this point of time, the fragile nature of the protection of the right to food in Guatemala became evident. Once the appeal was lodged, the injured party, Carmen Molina, needed to carry on with the case and that implied covering court costs.

Once notice of the appeal was received, Carmen’s lawyers requested the support of the Human Rights Procuraduría and the UN Office of the High Commissioner for Human Rights, but for a variety of reasons she did not receive the proper support and counsel. Finally, the Supreme Court rejected the case and it was dismissed. c) The Case of the Yakye Axa Indigenous Community versus the State of Paraguay (2002) This involves a grievance presented by the Centre for Justice and International Law (CEJIL)30 to the Inter-American Commission on Human Rights (IACHR), due to the state of Paraguay’s failure to recognise indigenous communities’ ownership of ancestral lands. This failure is linked to a violation of the right to life through the deprival of traditional means of subsistence, among them the right to food.31 The Paraguayan indigenous community Yakye Axa, a Guaraní people, lodged a grievance against the state for failing to recognise its ownership of its ancestral lands. In January 2002, the claimants informed the IACHR of the state’s failure to fulfil the commitments contained in the Agreement to Seek Common Ground. The Yakye Axa Community decided to withdraw from the negotiating talks with the government and requested that IACHR issue the corresponding admissibility report. In February 2002, the IAHCR declared the grievance against the State of Paraguay for 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 the Commission, the case was referred to the Inter-American Court of Human Rights, which deemed that Paraguay had not adopted the necessary and correct measures in its domestic law to guarantee the community the effective use and enjoyment of their ancestral land; and in doing so the free development and transmission of their culture and traditional practices were threatened. The Court ruled that Paraguay had violated the rights to ownership and legal protection, as well as the right to life, given that it deprived the community of access to its traditional livelihood.

It is worth highlighting that the right to food was not used as the main argument in this case, as it is excluded from the justiciable cases mentioned in the Protocol of San Salvador. Nevertheless, this right is protected due to its direct relationship with the right to a dignified life and the minimum food threshold associated with the right to 30 Centre for Justice and International Law, an NGO that acts through strategic litigation in favour of ESCR 31 More information at http://www.escr-net.org/caselaw/caselaw_results. htm?attribLang_id=13441.

life. Furthermore, the Court understood that the state did not adopt the necessary positive measures to ensure that, during the time they were landless, their living conditions were compatible with their dignity.

During their stay alongside a road opposite the lands for which they were claiming ownership, the community lacked 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 had the duty to adopt positive measures aimed at fulfilling the right to a dignified existence, especially in the case of people living in a situation of vulnerability and risk. The Court ordered the State to demarcate the traditional lands and hand them over to the community free of charge, providing them with the basic goods and services for their subsistence until their lands were restored. The Court reaffirmed its broad interpretation of the right to life by taking into account the regulations related to health, education and food mentioned in the Protocol of San Salvador. In its interpretation, it also took into account the general comments of the CESCR, the supervisory body of the ICESCR. d) The Case of the Ombudsman versus the State and the Province of Chaco on behalf of Toba Indigenous People, Argentina (2007) As a result of the grievance filed by the National Ombudsman against the State and the Province of Chaco32, in which constant violations of fundamental human rights were reported – including the right to food – among indigenous Toba populations in Chaco Province, the Supreme Court in a ruling dated the 18th of September 2007 deemed the Judicial Power’s obligation to find the necessary means to guarantee the effective enforcement of the rights recognised by the national Constitution and the international conventions. According to the Ombudsman, the situation of the communities located in southeast Chaco was a “silent, progressive, systematic and inexorable extermination.”

The grievance is based on the results of investigations by national institutions and the National Department of Human Rights. Furthermore, it quotes the media revealing the serious health, food and socioeconomic crises experienced by the Toba peoples, as a result of which most of the population suffers from chronic illnesses related to extreme poverty (malnutrition, Chagas disease, tuberculosis, donovanosis, bronchitis, parasitic diseases and scabies), a lack of food and no access to drinking water, housing and essential healthcare. It highlights that, as a result of this health and food crisis, eleven deaths33 from acute severe malnutrition were registered in August 2007.

The grievance, therefore, requested the State and the Department of Chaco to be urged to continuously and permanently guarantee a real and effective quality of dignified life, along with the rights involved in the expression of 32 The complete text of the complaint made to the Supreme Court for the extermination of indigenous communities can be found at: www.ceppas.org/gajat/index. php?option=com_docman&task=doc_view&gid=181.

33 This circumstance would have been corroborated by the Chaco Indigenous Institute and the Department of Human Rights.

this dignity in the broadest and fullest sense. It stated that the signing and ratification of international human rights treaties, the explicit and implicit mandates of the national and provincial Constitutions and the numerous national and provincial laws related to the fundamental rights of individuals clearly place both states as passive subjects of the lawsuit. In this sense, it affirms that the national state must guarantee inhabitants’ essential rights and therefore, concurrently with the provincial or municipal states, fulfil the population’s basic needs.

The Supreme Court34 ruled that the national and provincial states should provide immediate aid to the indigenous communities due to the serious and urgent nature of the situation, without prejudice to the final decision of the case. 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 different actions and statistics relating to the indigenous community living in the departments of General Güemes and Libertador General San Martín, including the community members, (b) a budget for tending to indigenous issues and the destination of the allocated funds in the respective laws, (c) implementation of health, food and healthcare programmes, (d) implementation of programmes providing drinking water and fumigation and disinfection services, (e) implementation of education plans, and (f) implementation of housing programmes.

• To invoke the requested precautionary measures and thus order the State and the Province of Chaco to supply drinking water and food to the indigenous communities living in both departments, as well as to provide adequate means of transport and communication to health centres.

• To organise a public hearing where the parties should explain the measures taken to resolve the situation of the indigenous communities in the face of deaths by malnutrition and diseases of poverty.

The result of the hearing was a tough questioning of the authorities due to the inefficiency of their aid policies in view of the reports presented by the community representatives and the Ombudsman. The latter took advantage of the meeting to denounce the fact that after visiting various villages one week before the hearing, he saw, in situ, that neither the food nor the water provided by the precautionary measures had arrived. Between August and November 2007, 21 deaths were registered from causes relating to malnutrition and poverty. The last three were children under the age of three.

Restrictions to justiciability: A law that citizens and judges 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 34 The Supreme Court of Justice’s ruling is available on the internet at: http://www. defensor.gov.ar/informes/fallochaco.pdf

series of legal, administrative, economic and knowledgebased limitations. That is, the law is not applied if the claimant and the judge are not familiar with it. In fact, the legal implications of the international human rights treaties at national level are quite weak, and many trial judges hardly know anything about the ESCR. a) Human rights cannot be legally invoked In many countries, legal regulations do not yet consider international human rights conventions (including civil, political rights and the economic, social and cultural rights) as a source of formal law unless there has been a specific transposition of the provisions of the conventions to the national legal framework. Even if they have been incorporated into the national body of laws, in many cases the violation of these ESCR only carries moral convictions and/ or convictions of non-repetition or modification of a law or programme and hardly ever criminal punishment or financial compensation. ESCR do not seem to be at the same level 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 upon which other cases can be built; through its nuances it broadens the spectrum of what is justiciable as well as the forms and arguments used. The “pull effect” of a favourable ruling (the former Honduras case) or the discouraging impact of an unfavourable ruling (the Guatemala case) are issues that must be taken into account in this initial phase of incipient jurisprudence. Each case, whether presented to an ordinary court or a quasi-judicial body (human rights ombudsman), is highly relevant. More successful cases are needed to become precedents for future justiciability cases.

As it has already been noted, cases can be submitted to judicial or quasi-judicial institutions. Regrettably, ordinary courts, which are more accessible for households facing food insecurity35, tend to not know about this subject, and ESCR do not appear in the long list of citizens’ rights. This urgently requires greater awareness of the importance of the right to food and its relationship with other citizens’ fundamental rights.

Human rights rapporteurs (procuradores and/or ombudsmen) have traditionally focused on civil and political rights and hardly touched on social rights. For example, an ESCR unit was only recently opened at the Ombudsman’s Office in Ecuador, while the Procuradoría for Human Rights in Guatemala only presented its first 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 35 Access to justice is a major limiting factor in Latin America, where the average cost of a lawsuit comes to around $3,000. This simple fact limits access to justice for more than 90% of the region’s citizens, who do not have the economic capacity to take a case or grievance to court, whether it be civil, criminal or for the violation of social rights.

this Procuraduría has already presented the third report this year 2010.

These problems of access to the legal system and the mechanisms for filing a grievance are rather evident to those who are suffering from hunger: those whose right is being violated. The hungry people are the least organised members of their society with the lowest level of education. They are also the least empowered in terms of filing grievances and trusting the government and the judicial system. Hungry people do not complain. That is why the role of civil society (NGOs, peasant groups, lawyers´ associations) in promoting rights and supporting claims of violations is so crucial.

Without public interest litigation actions36 to defend the right to food of food insecure groups, ethnic groups and individuals, we cannot progress towards making this right a reality. And this strategic litigation can only be done by civil society organisations: it will never be supported by governments, international organisations, developed countries or their development departments. It is becoming increasingly rare to receive support from private foundations in developed countries37. This is because the grievance or claim will usually hold a particular state responsible, and no external actor is willing to file a suit against any given state.

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

c) Diffused responsibility and contested classification As explained earlier, the right to food is multidimensional and requires intersectoral approaches that encompass several ministries and numerous government programmes.

So, which ministry is responsible for hunger? In theory, most of them partly and none of them wholly, which makes it difficult to assign legal and administrative responsibilities.

In practice, nobody wants to shoulder the sole responsibility of eradicating hunger. Even worse, in some countries the responsibility for providing children with adequate food falls on parents rather than on the state. Thus, those states do not feel compelled to play a leading role to respect, protect or fulfil this right does not seem to be their responsibility. That is why it is so important that the right to food, as a responsibility of the state, is included in 36 Public Interest Litigation is a well-known judicial mechanism in USA, Canada and India. Specially, in the latter, it has been used extensively to make progress in the realization of the right to food for famine-affected vulnerable populations. Further information can be accesed in the following websites: http://en.wikipedia.org/wiki/ Public_Interest_Litigation and http://www.ielrc.org/content/a0003.pdf.

37 Public interest litigation in favour of ESCR have experienced considerable development in India, especially linked to the Supreme Court of Justice and a broad interpretation of the fundamental right to life. http://www1.umn.edu/humanrts/edumat/IHRIP/circle/justiciability.htm

the constitution.

Another unresolved issue with even greater disagreement is the establishment of offences classified as violations of this right, which entails having to decide what type of violations exist and which punishment will be applied to each one. Globally, there has been little progress made in the classification of crimes involving violations of ESCR, and even less so in terms of violations of the right to food.

One of the oldest and best known cases on the classification of food-related crimes is the so-called ‘delito de extraperlo’, which has existed in Spain for more than 50 years and consists of penalising excessive rise in the prices of essential goods (water, food, medication) in times of war, natural disasters and their aftermath. This crime was classified after the Spanish Civil War, when the country was suffering terribly from poverty, hunger and the destruction of the productive and agricultural systems. During this difficult period, unscrupulous businessmen and salesmen appeared who took advantage of people’s needs to sell products 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 champions to present and explain it to politicians, the media and the courts. Even though international bodies cannot litigate against states, those bodies can promote the demandability (non-judicial) and justiciability (judicial) of this right. To date, unfortunately, both United Nations bodies and international NGOs have paid little attention to the justiciability of ESCR. The exceptions to this norm are NGOs like FIAN International, FAO and UNHCHR, which recognise the importance of this facet of justiciability not as the only one, but clearly as an important pathway to render this right operational.

In general, NGOs that defend the right to food have placed too much emphasis on the agricultural issue, with claims relating to land eviction or agrarian reform and less value attached to the development of institutional frameworks (political and legal) and the justiciability of these violations. It is worth highlighting the excellent efforts of FIAN International in this respect, with numerous publications and reports on the subject (FIAN, 2007a; 2007b; 2007c; 2007d). e) Cumbersome bureaucracy and meagre international outreach Another issue that affects the justiciability of the right to food is that collective cases have taken precedence over individual ones, with politically-tinged actions that receive sensationalist coverage. This media coverage is positive for the public’s awareness although it may affect the due legal process. Proceedings have been long, bureaucratic and costly and can hardly be paid for by the victims (poor, malnourished, low literacy levels). This long and heavy process

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

Until the Optional Protocol was signed and approved, claims shall be resolved within the domestic sphere. So far, very few were taken to the Inter-American Commission, and those cases were always related to other ESCR or to the right to life, as the right to food is not justiciable according to the Protocol of San Salvador. This right has provided few options for filing claims and therefore the governments of the region have shown little interest in bringing this right into the legal sphere. Perhaps the situation will change from 2010 onwards, since the number of cases that use the right 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 and specific measures so that decision-makers and civil society activists can propose and implement mechanisms and venues for promoting greater and better justiciability of this law. The proposals that follow are neither the only possible actions that a country can take nor are meant to define a pre-established order or to exclude other possible actions. a) Creating a Law for the National Food and Nutritional Security System Laws create and consolidate the institutional framework, understood as the group of institutions, policies, priorities and budgets and the hierarchical relationships among institutions, the mandates and functions of each of them, social representation, the scope of operation, the prioritisation of actions and groups and the allocation of budgets.

Laws are difficult to enact, but it is also difficult to repeal them and they help maintain the momentum of priorities and the institutional architecture that are so necessary for

that will then help to disseminate a “rights-based culture” in policies and actions for fighting hunger and poverty. In order to encourage justiciability, training is more effective if it is provided to judges and lawyers (for example, an ESCR module as part of their university training or jurisprudence based on real cases) and civil organisations that will later defend and promote these cases. d) Establishing the National ‘Rapporteur’ or ‘Procurador’ for the Right to Food

fighting hunger38. The process of building the legal framework for the right to food needs to be complemented by the elimination of regulations that hinder the fulfilment of this right and the harmonisation of national legislation with the international system. With the aim of supporting the construction of this type of law, there is now a manual for creating the “ideal” law, prepared by FAO’s Right to Food Unit, which considers the right to food in its entirety (FAO, 2009c).

This idea is only feasible in countries that suffer from high levels of malnutrition, where the fight against hunger is a truly national priority (Haiti, Brazil, Guatemala and Bolivia). This person (or team), which is permanently and exclusively dedicated to observing and ensuring the recognition of, respect for and the realisation of the right to food, could be part of the procuraduría or ombudsman’s office or named as a special Procurador (Rapporteur) who monitors the right to food as part of the ICESCR monitoring ratified by 146 countries.39 A less ambitious option would entail teams working on ESCR in the ministries of justice, the parliaments and the quasi-judicial bodies can also be quite important. e) Forensic certificates including severe acute malnutrition as a cause of death

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, magistrates, human rights procuradores) about the relevance of the rights-based approach, the protection of ESCR and, specifically, the right to food. To do this, activities (seminars, meetings, gatherings) must be held aimed at creating a critical mass of professionals that can help promote vigilance, the operating capacity and respect for this right as a weapon in the fight against hunger. The use of the right to food as a legal argument in the case of Carmen Molina in Guatemala was fostered by the case judge’s attendance at a training session on the subject.

So far, severe acute malnutrition is not an official cause of death in most countries. There is always another ultimate cause (cardiac arrest, kidney failure or pneumonia) which in many cases arises as a direct result of a lack of metabolic energy. If hunger is not accepted as a legal cause of death, it cannot be presented as proof in court and the utility of the extreme violation of the fundamental right to be free from hunger is weakened. For this reason, we propose to include in the national legal systems severe acute malnutrition as a legal cause of death and/or serious physical and psychological injury. This issue must be dealt with by the national forensic systems, which makes both training coroners and lawyers and working on the legal side with the different parliaments necessary. The aim is to use these forensic reports as evidence in criminal and human rights courts. The existence of this legal cause of death would be a considerable boost to future justiciability cases.

c) Training on the right to food

f) The establishment of a court specialised in ESCR

One cannot value what one does not know, even though the lack of knowledge of a law does not exempt us from complying with it. For this reason, human rights procuradorías and universities, along with international bodies and civil society organisations, should provide current and future national leaders with solid training on the right to food. Just like in the previous case, the key lies in creating a critical mass of professionals in different sectors (teachers, lawyers, social and religious leaders, journalists, politicians)

As the violation of ESCR is a common cause in every poverty- and hunger-related cases, and as these issues affect a high percentage of the population in many countries, the creation of courts (or specific judges) specialised in handling violations of economic, social and cultural rights seems to make sense and responds to considerable public demand. The aim of these courts would be to provide justice and ensure due process (acceptance, protection, treatment, sentencing and review) for the peo-

b) Raising awareness among civil servants

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

39 The only countries in the region that have not ratified the ICESCR so far are Antigua & Barbuda, Bahamas, Belize, Haiti, San Kitts & Nevis and Saint Lucía. They are all members of FAO and voted in favour of adopting the Right to Food Voluntary Guidelines

ple whose rights have been violated. In some countries, a special court could even be set up to gather and monitor the complaints that use the right to food as a legal argument. 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 awarenessraising campaigns must be implemented for civil society organisations and support must be provided to national alliances against hunger and in favour of the right to food, so that they can act as platforms that pressure for recognition, respect and the materialisation of this right. We have already seen that only civil society organisations are poised to move the justiciability of the right to food forward, as only them have the technical and financial ability to carry out strategic litigation in order to bring cases to the attention of human rights organisations and national courts. Moreover, those organisations are capable of defending a case before an international commission (United Nations Commission on Human Rights or the Inter-American Court of Human Rights). h) A national observatory on food and nutritional security and the right to food It could be supported the creation of a monitoring-analytical body, made up of civil society leaders, experts and national and international scholars, to monitor compliance with the ICESCR and obligations related to the right to food. Either this body could be part of a human rights institution or it could be independent as a think tank. Its main goal would be to become an impartial observer, independent from the government, who would monitor the progress made and the challenges to the fulfilment of the right to food for the citizens of the country. There are already observatories of this type in Guatemala, Colombia and Brazil. i) Monitoring indicators National monitoring indicators can be drawn up aimed at measuring the recognition of, respect for and the fulfilment of the right to food. These indicators should be specifically related to the legal and financial implications related to the gradual fulfilment of the right to food, and even though they could also include indicators used to monitor food security or nutrition, they should not be limited to these. In this way, the following specific indicators can be mentioned: 1. The number of grievances received and/or filed relating to violations of the right to food.

2. The number of deaths caused by acute severe malnutrition reported by forensic reports.

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

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

5. Minimum wages in comparison with the cost of the basic food basket. j) The creation of mechanisms that allow for public interest litigation The lack of specific procedures for filing grievances about the violation of a constitutional right or a right included in a binding international treaty (such as the ICESCR) should not serve as an impediment to judges´ or quasi-judicial bodies’ acceptance of previously recognised rights. Dismissing these cases is a breach on the due process and it fails to comply with the obligation of providing justice, especially when the right to food appears in the Constitution. In this sense, countries should establish administrative and legal mechanisms to channel the claims related to violations of this right and facilitate the procedure of lodging collective lawsuits, which are those made by a person or institution on behalf of a group or a third party whose rights have been violated and due to a lack of resources, knowledge or ability cannot submit claims on their own behalf. These proceedings, known as public interest or strategic litigation, have as objective to create jurisprudence and legal progress that will raise the bar in terms of the guaranteed minimum provisions and the state’s responsibilities for citizens’ rights.

Demanding fundamental social rights in fragile democracies None of the inherent elements in the right to food justifies its national and international non-justiciability. On the contrary, there are strong arguments in favour of its demandability thorugh different channels (administrative and quasi-judicial), and even of its justiciability via the legal system. The first one is the unquestionable fact that this right is already justiciable in several countries and included in several constitutions, specific food security laws and binding international treaties. The second one, by virtue of a fundamental principle of international law relating to human rights, all people have the right to a suitable

“effective appeal” when their rights have been violated.

In Latin America, there is a long tradition of ‘recurso de amparo’ (a request for the protection of one’s constitutional rights) in order to assert, as either a precautionary or immediate action, maximum protection for an individual whose rights have been violated or whose innocence has been questioned. This recurso de amparo should be exercised much more frequently in order to protect people who are at risk of death from malnutrition and whose fundamental right to be free from hunger has been violated. The obligations to respect and protect, as well as the obligation to grant the right to food in a non-discriminatory way, cause the fewest problems. The obligations of fulfilling this right and facilitating its execution for everyone at all times are more complicated from an operational, political and financial standpoint.

Nevertheless, in order to guarantee that the victims of violations of the right to food have effective access to justice in their country, something more than state-level and legal recognition of its justiciability is needed. We need greater knowledge of the right to food and the corresponding obligations of the holders of this right. Lawyers need to be trained so that they are able to effectively respect and render operational this right, and judges should also acquire the necessary knowledge in order to understand these allegations. In some countries, adopting measures to guarantee that legal frameworks adequately reflect the right to food and the obligations of the state towards this right is highly recommended. There are several ways of moving towards a hunger-free Latin America and Caribbean, and the legal approach to the right to food is one of the most powerful. The still-incipient justiciability will surely help achieve this.

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