1. Introduction
The 1948 Universal Declaration of Human Rights provides both for a right to food and the enforceability of this right through judicial means. The International Covenant on Economic, Social, and Cultural Rights of 1966 spells out the rights to adequate food and freedom from hunger. Although such declarations do not create binding international obligations, as statements of international consensus, they do offer guidance for appropriate action. The World Food Security Plan of Action calls upon the UN system “to better define the rights related to food ……. and to propose ways to implement and realize these rights…, taking into account the possibility of formulating voluntary guidelines for food security for all.”
Adopted General Comment 12 in 1999, while the Committee’s General Comments do not create legal obligations, legal experts consider them to have “particular authority.” In addition, GC 12 is unambiguous on justifiability: “Any person or group who is a victim of the violation of the right to adequate food should have access to effective judicial or other appropriate remedies at both national and international levels.” In 2004, an Intergovernmental Working Group established under FAO auspices agreed to comprehensive voluntary guidelines on implementing the right to adequate food. These guidelines recommend creating administrative, quasi-judicial, and judicial mechanisms to provide adequate, effective, and prompt remedies accessible, in particular, to members of vulnerable groups.
While it is clear that many aspects pertaining to the right to food are justiciable in many countries, this is not fully recognized in all countries, or in all circumstances. Of course, as experience is shared between countries and as lawyers are increasingly arguing for the right to food as a basis for decisions, it is likely that justiciability of the right to food will continue to expand over time. Yet, it must be acknowledged that there still remain arguments against justiciability, on a number of grounds. Governments may fear the cost implications of losing cases brought by people claiming a violation of the right to food. Some argue that economic, social and cultural rights, as stated in the ICESCR, are not justiciable, because they are imprecise, resource-demanding, and are subject to available resources and progressive realization.
Right to food is already justiciable in a number of countries and there is a fundamental principle in international human rights law whereby everyone has the right to an appropriate “effective remedy” when his/her right or rights have been violated.
The development of national development policies and programs in Nepal is the mandate of Nepal’s National Planning Commission (NPC). The NPC must approve any related policy framework before development programming can be implemented. People’s right to food in Nepal has been grossly violated in the absence of adequate legislation and policies. In such situation, people neither have knowledge about the restoration of their violated rights nor can victims claim remuneration or legal remedy in case of violation of their rights to food. Nevertheless, despite the high level of hunger in Nepal, the UNDP has noted that “food security ever constituted a major plank of policy-making” in the country.
2. Rationale on Justiciability on human rights to food in Nepal
The rights-based approach is a new development paradigm that contrasts with conventional approaches to development. The conventional approach focuses on interventions and service delivery to meet human needs. It often regards beneficiaries as passive objects of development. By comparison, the rights based approach emphasizes the realization of internationally recognized human rights that impose obligations on states and empowers rights-holders to assert their claims vis-à-vis state authorities. The rule of law is a key principle of the rights-based approach. Not only must a legal framework protect and promote human rights, but rights-holders must have access to competent, impartial, and independent processes that can adjudicate disputes and rule on claims. Put simply, meaningful rights must be enforceable.
In April 2011 the Supreme Court of Nepal published a key decision regarding the right to food in the country. Included in the Interim Constitution of 2007 and clarified by a Supreme Court interim order in September of 2008, the right of everyone to adequate food has been reinforced by this decision and some vital specifications have been made. Aside from the availability of food, the Court puts emphasis on the role of the authorities in ensuring that food is accessible and affordable for the people. This is a significant step forward taken to ensure the respect, protection and fulfillment of the right to food. Moreover, the Court draws attention to the links between the right to food and other human rights, such as the right to employment, and social security, and basic necessities, to which it holds the government responsible for ensuring its progressive realization. The Interim Constitution of Nepal includes provisions that protect economic, social and cultural rights. Article 33 of the Constitution, under duties and directive principles, lists the following obligations, which are relevant for the right to food: Pursue the policy of establishing the rights of all citizens to education, health, housing, employment, and adequate food, adopt universally accepted fundamental human rights, effectively implement international treaties and agreements of which the Nepali State is a party, Adopt a policy of providing economic and social security to the class that are socio-economically backward such as the landless, bonded laborers, tillers and shepherds (1) Pursue the policy of adopting scientific land reform programs by gradually ending capitalistic land ownership practices (2). In addition, Article 18 of the Interim Constitution protects the right to food sovereignty according to the provision made by the law.” Food sovereignty, a concept that promotes local ownership of productive resources for food security, incorporates a human rights perspective. The Interim Constitution recommends that the NHRC be upgraded from a statutory body to a constitutional body. The NHRC was established in the year 2000 under the Human Rights Commission Act 1997. In its strategic plan for 2004-2008, the NHRC identifies the right to food, health, shelter, education, and work as the focus of one of its seven strategic objectives. Other commissions have been created specifically to address the issue of discrimination in Nepal, including the National Women’s Commission, the National Dalit Commission, and the National Committee for the Development of Nationalities.
At its current pace, Nepal will not achieve its millennium objective of reducing the proportion of hungry people by half by 2015. Nor has it taken sufficient steps in accordance with the available resources to meet core, immediate obligations related to the human right to adequate food, specifically those related to non-discrimination. The state faces immense obstacles in seeking to provide sustainable access to food for all its citizens. These obstacles include difficult terrain, remoteness and associated lack of infrastructure, and rigid social structures that entrench discrimination and social exclusion. Nevertheless, there are number of areas in which the state has failed to take the minimum action required to confront these challenges and implement its right to food obligations. They include: Failure to adopt a comprehensive right to food strategy, including adoption of a food security policy and monitoring procedure; Failure to develop an appropriate institutional or legislative framework for implementation of right to food strategies and application of effective remedies; Failure to enforce non-discriminatory application of laws and policies affecting living standards, livelihoods, and access to adequate food Insufficient implementation of agrarian reform objectives; Failure to coordinate food security policies and programs between the capital, regions, districts, and government ministries. These structural and procedural weaknesses assume different characteristics as they are experienced at the community level.
Awareness of the right to food and the obligations pertaining thereto need to be heightened amongst rights holders. Lawyers need to be educated so that they can argue effectively for the upholding of this right and judges need to acquire the knowledge to accept such arguments, when appropriate. In our country, legislative action may also be advisable to ensure that the written law of the land adequately reflects the right to food and the obligations of all branches of the State to uphold it.
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