Information provided by the Special Rapporteur on the Right to Food

COMMISSION ON HUMAN RIGHTS

Open-ended working group on an

Optional Protocol to the International Covenant

on Economic, Social and Cultural Rights

Geneva, 23 February to 5 March 2004

 

 

Mr. Jean Ziegler

 

I.       INTRODUCTION

 

1.            The Special Rapporteur on the Right to Food welcomes the decision of the UN Commission on Human Rights in its resolution 2003/18, to establish an open-ended working group on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (the working group) and to invite all Special Rapporteurs whose mandates deal with the realization of economic, social and cultural rights to share their views and to make recommendations to the Working Group.

2.            The elaboration of an “Optional Protocol to the International Covenant on Economic, Social and Cultural Rights” would mark significant progress at the international level in the development of the practical framework for the understanding and implementation of economic, social and cultural rights, including the right to food.  The process of elaborating the “Optional Protocol” will provide an important forum for discussion and sharing of experiences regarding justiciability of these rights. The Special Rapporteur very much welcomes the opportunity to participate in this process and hopes that this process will provide the impetus for all governments, and other actors, to recognise economic, social and cultural rights (ESCR), including the right to food, and to engage in a practical debate on the best ways of enforcing and realizing these rights.

3.            The Special Rapporteur supports the text of the Draft Optional Protocol produced by the Committee on Economic, Social and Cultural Rights as an excellent starting point for this discussion.  The Special Rapporteur is of the opinion that ALL human rights recognised in the International Covenant on Economic, Social and Cultural Rights should be subject to determination by the Committee, through the Optional Protocol, as is proposed in the existing draft text. 

4.            In this submission, the objective of the Special Rapporteur is to contribute to the debate on justiciability by showing that the right to food can be considered to be justiciable and that arguments that question the justiciability of economic, social and cultural rights are now outdated.  Recent developments at international, national and regional levels show how justiciability is possible and practiced, and therefore shows how the Committee on Economic, Social and Cultural Rights could deal with cases related to the right to food through the Optional Protocol.

II.     DEFINITION OF THE RIGHT TO FOOD

5.            The right to food is a human right and is a binding obligation well-established under international law, recognised inter alia in the Universal Declaration on Human Rights and the International Covenant on Economic, Social and Cultural Rights, as well as a plethora of other instruments.  The right to food has also been recognised in numerous national constitutions.[1]

6.            The nature and scope of the right to food has been well defined in the General Comment No. 12 of the Committee on Economic, Social and Cultural Rights.  The right to food is :

“the right of every man, woman and child alone and in community with others to have physical and economic access at all times to adequate food or means for its procurement in ways consistent with human dignity.”

7.            The right to food also implies three types of obligations:  “  the obligations to respect, protect and to fulfil… The obligations to respect existing access to adequate food requires States parties not to take any measure that result in preventing such access. The obligation to protect requires measures by the State to ensure that enterprises or individuals do not deprive individuals of their access to adequate food. The obligation to fulfil (facilitate) means that States must pro-actively engage in activities intended to strengthen people´s  access to and utilization of resources and means to ensure their livelihood, including food security. Finally, whenever an individual or group is unable to enjoy the right to adequate food by the means at their disposal, States have the obligation to fulfil (provide) that right directly.”

8.            Under article 2(1) of the International Covenant on ESCR States agreed to take steps to the maximum of their available ressources to achieve progressively the full realization of the right to adequate food. Under article 2(2) of the Covenant States agreed to guarantee that the right to food will be exercised without discrimination. Finally, under article 3 of the Covenant States agreed to ensure the equal right of men and women to the enjoyment of the right to food.

III.    JUSTICIABILITY OF THE RIGHT TO FOOD

9.            The Special Rapporteur expressed his views on the justiciability of the right to food in a report presented before the Commission on Human Rights in April 2002 (E/CN.4/2002/58, para. 29-71). In this paper, the Special Rapporteur will summarized his arguments and go further to include new conceptual framework and case law materials.

10.        For the Special Rapporteur justiciability is the possibility for a human right, recognized in general and abstract terms, to be invoked before a judicial or quasi-judicial body that can determine if, in the particular concrete case presented before it, the human right has, or has not, been violated, and which can decides on measures to be taken to remedy any such violation.[2]

A.  The nature of the right to food as a justiciable right

11.        At the 1993 World Conference on Human Rights, States adopted the Vienna Declaration and Plan of Action in which they agreed that:

“all human rights are universal, indivisible and interdependent and interrelated.  The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.  While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.”[3]

12.        This means that economic, social and cultural rights must be treated as equal in importance to civil and political rights. Therefore, the enforcement mechanisms put in place to protect economic, social and cultural rights should be just as strong as the enforcement mechanisms that protect civil and political rights.

13.        At the 1993 World Conference on Human Rights also, States encouraged “the Commission on Human Rights, in cooperation with the Committee on Economic, Social and Cultural Rights, to continue the examination of optional protocols to the International Covenant on Economic, Social and Cultural Rights” and “the Commission on the Status of Women and the Committee on the Elimination of Discrimination against Women to quickly examine the possibility of introducing the right of petition through the preparation of an optional protocol to the Convention on the Elimination of All Forms of Discrimination against Women”[4]. The latter entered into force the 22th of December 2000, but regarding the economic, social and cultural rights these great words of Vienna have not yet been translated into reality.  There is still an out-dated view that economic, social and cultural rights are very different from civil and political rights, and could never be justiciable or properly enforced.

14.        Recent developments in the definition and protection of economic, social and cultural rights, including the right to food, show that arguments against justiciability are no longer valid. Moreover, the development of an increasing level of protection of economic, social and cultural rights by judicial or quasi-judicial body at the international, regional and national levels, which has been decided by States, questions the credibility of out-dated arguments against the justiciability of economic, social and cultural rights.

15.        At the international level, the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights has had to deal frequently with issues related to economic, social and cultural rights directly[5] or indirectly[6].  With the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (1999) entering into force on the 22 December 2000, women’s rights related to the right to food can now be the subject of individual and groups petitions before the Committee on the Elimination of Discrimination against Women.

16.        At the regional level, the right to food, which is recognized under article 12 of the Protocol of San Salvador, is excluded from the benefit of the system of individual petitions before the Inter-American Commission and the Inter-American Court of Human Rights[7], but this is not the case for the right to education and the right to form trade unions. At the European level, under the 1995 Additional Protocol to the European Social Charter, collective complaints can be submitted by groups of NGOs or trade unions to the European Committee on Social Rights, a quasi-judicial body composed of independent experts.  Finally in Africa according to the 1986 African Charter on Human and Peoples’ Rights, all human rights are considered equal and all are believed to be justiciable by their nature. The African Commission on Human and Peoples’ Rights can receive complaints from individuals and NGOs[8] for violations of any human rights in the Charter, including economic, social and cultural rights. And the 25^th of January 2004 the Protocol to the African Charter on the Establishment of an

African Court

on Human Rights entered into force, which means that economic, social and cultural rights are fully justiciable in Africa.

17.        At the national level, many countries protect economic, social and cultural rights as justiciable human rights in their Constitution.  The example of South Africa is particularly important, as all economic and social rights have been declared justiciable under South African law, and there is a strong commitment to the right to food in the South African Constitution and Bill of Rights.  The South African Bill of Rights, which is incorporated into the 1996 Constitution, explicitly provides (sect. 27, para. 1 (b)) that every person in South Africa has the right to have access to sufficient food and water, subject to progressive realization.  There are also many other related rights, including the right to have access to social security, including, for those unable to support themselves and their dependants, appropriate social assistance (sect. 27, para. 1 (c)).  The Constitution requires (sect. 7, para. 2) the State to respect, protect and fulfil the realization of all the rights in the Bill of Rights, including socio-economic rights.

18.        Traditionally the argument against the justiciability of the right to food has rested on conceptual and theoretical grounds.  In the cold war period, some Western States thought that the nature of the right to food, like other economic, social and cultural rights, was fundamentally different from civil and political rights.  It was argued that economic, social and cultural rights were different, by their very nature, and non‑justiciable for three reasons:  firstly, the right to food was imprecise; secondly, the right to food was subject to the limit of progressive realization; thirdly, the right to food required resources to be provided and involve political issues which a judicial or quasi-judicial body is not able to deal with. All these arguments have been used in the past to suggest that the right to food could not be justiciable.  The Special Rapporteur will now explain why these arguments are no longer valid.

1) The right to food is not imprecise

19.        The right to food, and the measures that must be taken, are laid out quite precisely in article 11 of the International Covenant on Economic, Social and Cultural Rights.  Paragraph 1 calls on States to “recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food … and the continuous improvement of living conditions”.  Paragraph 2 is more precise, as it demands that States guarantee the fundamental right of everyone to be free from hunger, and asks them to take “individually and through international cooperation, the measures, including specific programmes, which are needed:

“(a)      To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources;

“(b)      Taking into account the problems of both food-importing and food‑exporting countries, to ensure an equitable distribution of world food supplies in relation to need.”

 

20.        In fact, article 11 of the Covenant was written in a relatively precise terms, compared to some of the civil and political rights that were recognized in the International Covenant on Civil and Political Rights and are considered from decades to be justiciable.

21.        But more important is the fact that the right to food as been the subject of considerable work on its definition, from the legal doctrine to the works of the UN Sub-Commission Special Rapporteur on the Right to Food, Prof. A. Eide, and of the Committee on Economic, Social and Cultural Rights. At the request of the 1996 World Food Summit Plan of Action, the right to food was extensively defined in General Comment 12 of the Committee on ESCR (1999).

22.        According to this General Comment 12, the right to food is “the right of every man, woman and child alone and in community with others to have physical and economic access at all times to adequate food or means for its procurement in ways consistent with human dignity.” The right to food has two main components : availability and accessibility.

23.        First, food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture should be available for everyone, i.e. should be obtain either directly from productive land or other natural resources, or indirectly from well functioning distribution, processing and market systems that can move food from the site of production to where it is needed in accordance with demand.

24.        Second, everyone should have economic and physical access to sufficient food. According to General Comment 12, “Economic accessibility implies that personal or household financial costs associated with the acquisition of food for an adequate diet should be at a level such that the attainment and satisfaction of other basic needs are not threatened or compromised. Economic accessibility applies to any acquisition pattern or entitlement through which people procure their food and is a measure of the extent to which it is satisfactory for the enjoyment of the right to adequate food. Socially vulnerable groups such as landless persons and other particularly impoverished segments of the population may need attention through special programmes. Physical accessibility implies that adequate food must be accessible to everyone, including physically vulnerable individuals, such as infants and young children, elderly people, the physically disabled, the terminally ill and persons with persistent medical problems, including the mentally ill. Victims of natural disasters, people living in disaster-prone areas and other specially disadvantaged groups may need special attention and sometimes priority consideration with respect to accessibility of food.  A particular vulnerability is that of many indigenous population groups whose access to their ancestral lands may be threatened.”[9]

25.        Professor Asbjorn Eide, in his capacity as UN Sub-Commission Special Rapporteur on the right to food, and in his work with the Committee on ESCR on elaborating the General Comment, defined that three different levels of obligation are correlative to the right to food : the obligations to respect, protect and fulfil. The obligation to respect the right to food is effectively a negative obligation, as it entails limits on the exercise of State power that might threaten people’s existing access to food. The obligation to protect requires States to take an active role in the regulation of non-State actors, including enterprises or individuals who threaten other people’s right to food. The obligation to fulfil is a positive obligation, as this means that the Government must actively seek to identify vulnerable groups and implement policies to improve those people’s access to adequate food and ability to feed themselves. As a last resort, direct assistance may also have to be provided where people are unable to access adequate food for reasons beyond their control.

 

 

      Obligation to respect

26.        The obligation to respect means that the Government should not arbitrarily take away people’s right to food or make it difficult for them to gain access to food. Violations of the obligation to respect would occur, for example, if the Government arbitrarily evicted or displaced people from their land, especially if the land was their primary means of feeding themselves, or if the Government knowingly introduced toxic substances into the food chain, as the right to food entails access to food that is “free from adverse substances”.

Obligation to protect

27.        The obligation to protect means that the Government must pass laws to prevent powerful people or organizations from violating the right to food. The Government must also establish bodies to investigate and provide effective remedies if that right is violated. For example, if the Government does not intervene when a powerful individual evicts people from their land, then the Government violates the obligation to protect the right to food. The Government would also fail to protect the right to food if it took no action if a company polluted a community’s water supply.

Obligation to fulfil

28.        The obligation to fulfil means that the Government must take positive actions to identify vulnerable groups and to implement policies to ensure access to adequate food by facilitating their ability to feed themselves. That could mean improving employment prospects, by introducing an agrarian reform programme for landless groups or promoting alternative employment opportunities. It could also include, for example, programmes of free milk provision in schools in order to improve child nutrition. The further obligation to provide goes beyond the obligation to facilitate, but only comes into effect when people’s food security is threatened for reasons beyond their control. As a last resort, direct assistance may have to be provided, by means of safety nets such as food voucher schemes or social security provisions, to ensure freedom from hunger. The Government would violate that obligation if it let people starve when they were in desperate need and had no way of helping themselves. An appeal by a State for international humanitarian aid, when it is itself unable to guarantee the population’s right to food, also comes under this third obligation. States that, through neglect or misplaced national pride, make no such appeal or deliberately delay making it are violating their obligation.

29.        It appears from the extensive work done on the definition of the right to food in the last 20 years that the right to food recognized in article 11 of the International Covenant on Economic, Social and Cultural Rights is now precise enough for the Committee on ESCR to determine in a concrete case if the right to food has been or has not been violated. For example, as the Committee stated in General Comment 12 : “Violations of the right to food can occur through the direct action of States or other entities insufficiently regulated by States. These include: the formal repeal or suspension of legislation necessary for the continued enjoyment of the right to food; denial of access to food to particular individuals or groups, whether the discrimination is based on legislation or is pro-active; the prevention of access to humanitarian food aid in internal conflicts or other emergency situations; adoption of legislation or policies which are manifestly incompatible with pre-existing legal obligations relating to the right to food; and failure to regulate activities of individuals or groups so as to prevent them from violating the right to food of others ...”.[10]

2) The limit of progressive realisation is not a barrier to justiciability

30.        Under article 2(1) of the International Covenant on Economic, Social and Cultural Rights States parties agree to take steps to the maximum of their available resources, “with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means”.  In the past, this wording has generally been interpreted as an evolving programme depending upon the goodwill and resources of States rather than an immediate binding legal obligation, backed by the sanction of a judicial or quasi-judicial body.

31.        However, in General Comment 3 (1990), the Committee on ESCR provides examples of minimum State obligations of immediate nature and puts some limits on the concept of progressive realization. Firstly, States have to obligation “to take steps”. This means that “while the full realization of the relevant rights may be achieved progressively, steps towards that goal must be taken within a reasonably short time after the Covenant's entry into force for the States concerned. Such steps should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant.”[11]

32.        Secondly, in accordance with General Comment No. 12, “… States have a core obligation to take the necessary action to mitigate and alleviate hunger … even in times of natural or other disasters.”[12] For the Committee, “violations of the Covenant occur when a State fails to ensure the satisfaction of, at the very least, the minimum essential level required to be free from hunger. In determining which actions or omissions amount to a violation of the right to food, it is important to distinguish the inability from the unwillingness of a State party to comply. Should a State party argue that resource constraints make it impossible to provide access to food for those who are unable by themselves to secure such access, the State has to demonstrate that every effort has been made to use all the resources at its disposal in an effort to satisfy, as a matter of priority, those minimum obligations … A State claiming that it is unable to carry out its obligation for reasons beyond its control therefore has the burden of proving that this is the case and that it has unsuccessfully sought to obtain international support to ensure the availability and accessibility of the necessary food.”[13]

33.        Thirdly, practice demonstrates that the obligations to respect and to protect the right to food are not subject to progressive realization. As their object is to protect existing access to food, it seems obvious that these are obligations that States have to comply with immediately. These obligations have been the subject of substantial jurisprudence around the world. For example, in a key decision issued in 2001, the African Commission on Human and Peoples’ Rights was faced with a complaint against the behaviour of an oil consortium between the State oil company, the Nigerian National Petroleum Company, and Shell Petroleum Development Corporation.[14]  It was alleged by the Social and Economic Rights Action Center (Nigeria) and the Center for Economic, Social and Cultural Rights (USA) that the Nigerian government destroyed and threatened Ogoni People food sources through a variety of means, including the poisoning of the oil and water upon which Ogoni farming and fishing depended, the destruction of crops and the killing of farm animals, and the creation of a state of terror and insecurity that has made it impossible for many Ogoni villagers to return to their fields and animals, all of which has created malnutrition and starvation among certain Ogoni Communities. It was also alleged by the applicants that the Nigerian government had failed to regulate and monitore the activities of the oil companies, nor required the oil companies to consult communities before beginning operations, even when their operations posed direct threats to community or individual lands. The African Commission, after having conducted a mission to Nigeria, found violations of the African Charter in several respects, but, in particular, it referred to the obligations of States with regard to private actors in the context of the right to food.

34.        For the African Commission, “Governments have a duty to protect their citizens, not only through appropriate legislation and effective enforcement but also by protecting them from damaging acts that may be perpetrated by private parties. (…) The African Charter and international law require and bind Nigeria to protect and improve existing food sources and to ensure access to adequate food for all citizens. (…) the right to food requires that the Nigerian Government should not destroy or contaminate food sources. It should not allow private parties to destroy or contaminate food sources, and prevent peoples’ effort to feed themselves.”[15] In its conclusions, the African Commission found that “The government’s treatment of the Ogonis has violated all three minimum duties of the right to food. The government has destroyed food sources through its security forces and State Oil Company ; has allowed private oil companies to destroy food sources ; and, through terror, has created significant obstacles to Ogoni communities trying to feed themselves. The Nigerian government has again fallen short of what is expected of it as under the provisions of the African Charter and international human rights standards, and hence, is in violation of the right to food of the Ogonis.” In its recommendations, the African Commission appeals to the Nigerian government to ensure protection of the people of Ogoniland by several means, including ensuring adequate compensation to victims of the human rights violations, ensuring relief and resettlement assistance to victims of government sponsored raids, undertaking a comprehensive cleanup of lands and rivers damaged by oil operations, and ensuring that appropriate environmental and social impact assessments are prepared for any future oil development and that the safe operation of any further oid development is guaranteed through effective and independent oversight bodies for the petroleum industry”.[16]

35.        Finally, the prohibition of discrimination is not subject to the limitation of progressive realization. The obligation not to discriminate is an immediate duty and discrimination in access to food on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, as stated in article 2, paragraph 2, of the International Covenant, cannot be justified under any circumstances. The Special Rapporteur believes very strongly that non-discrimination must be implemented immediately, must not be subjected to progressive realization and must be recognized as justiciable. It is important in this context to remember that the Human Rights Committee in 1987 decided that the right to equality and non-discrimination recognized in the International Covenant on Civil and Political Rights also apply to Economic, Social and Cultural Rights and is justiciable.[17]

36.        To conclude, part of the obligations under the right to food - namely, the obligation to respect, the obligation to protect, the obligation of non-discrimination, the obligation to take steps and the obligation to provide a basic minimum subsistence - should be made immediately effective, since they are not subject to progressive realization.  A violation of these obligations regarding the right to food is also very clear, and the Committee on ESCR should be able to determine in a concrete case if these obligations regarding the right to food have been or have not been violated.

3) The resources requirement is not a barrier to justiciability

37.        The main argument for a difference of nature between human rights was that civil and political rights were effectively “negative obligations”, which means that the State must simply refrain from taking actions that stop people from exercising their civil and political rights.  This is seen as inexpensive in terms of resources, as it simply implies that the State should not do something.  Economic, social and cultural rights, on the other hand, were viewed as “positive obligations” as they require the State to take positive action to improve the living conditions of people.  In this case, positive actions must be taken by Governments, which implies the need for resources. For that reason, even when economic, social and cultural rights are laid down in national constitutions, these rights are often considered as “directives” or “guidelines” for Governments, rather than as individual rights that are enforceable in courts.  This is because, it is suggested, the judiciary should not have power either to adjudicate the right to food, nor to control policies and resources that are the responsibility of the executive branch of Government.

38.        However, it is well known that even implementing civil and political rights does in fact imply resources.  The costs of setting up and training the police force, the military and the judiciary to implement international human rights law is not insignificant.  It is also clear that civil and political rights as justiciable rights have only become clear through legal developments and judicial jurisprudence.  Similarly, as action is taken in the courts or before the Committee on ESCR in the name of economic, social and cultural rights, it will become clearer how these rights can be treated as justiciable rights.

39.        As said, under the right to food, there are three different levels of obligation - the obligations to respect, protect and fulfil the right to food.  While the obligations to fulfil the right to food is certainly a positive obligation that require positive actions from the State, the obligation to respect is effectively a negative obligation.  This means that States must not take any action that interferes with people’s access to food - such as, for example, destroying their crops or forcibly displacing them from their land or means of subsistence.  On the other hand, the obligation to protect requires States to take an active role to prevent non-State actors, including enterprises or individuals, from violating other people’s right to food. The obligation to respect, therefore, is a negative obligation.  It is little different from the negative obligations implied by civil and political rights, in the sense that it does not require extensive government resources to implement.

40.        The principle of non-discrimination also is not subject to the ressources requirement.  Discrimination in access to food on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status cannot be justified under any circumstances, including low levels of resources.  This means that it should be ensured, whatever the level of resources, that resources are shared fairly and that specific groups are not discriminated against in the distribution of resources by the State.

41.        Finally, the resources requirement does not, of itself, necessarily mean that economic, social and cultural rights cannot be justiciable.  This is the case even for the positive obligations included in the right to food:  the right to protect and the right to fulfil the right to food.  There is progress in constitutional jurisprudence in a number of countries which show that both the progressive realization and the resources requirements of socio‑economic rights can be brought to the competence of judges in a court of law.

42.        In India for example, NGOs petitioned to the Supreme Court in the name of destitute people who were dying from hunger in the State of Rajasthan, when just a short distance away the foodstocks of the Food Corporation of India were full of grain. The Supreme Court agreed that destitute people in India have a justiciable right to food and made court orders to determine that the public food distribution system, as well as other social schemes, already in existence, should be fully implemented by the Governement.[18] For example, in an order dated 20 August 2001, it stated :

“The Anxiety of the Court is to see that the poor and the destitute and the weaker sections of the society do not suffer from hunger and starvation. The prevention of the same is one of the prime responsibilities of the Government – whether Central or the State. How this is to be ensured would be a matter of policy which is best left to the Government. All that the Court has to be satisfied and which it may have to ensure is that the food-grains which are overflowing in the storage receptacles, …, and which are abundant should not be wasted by dumping into the sea or eaten by the rats. Mere schemes without any implementation are of no use. What is important is that the food must reach the hungry.”[19]

43.        In South Africa, the Grootboom case is maybe the best example of the way in which the Committee on Economic, Social and Cultural Rights could deal with a case concerning the non-fulfilment of economic, social and cultural rights, including the right to food. This case – the case of Government of the Republic of South Africa v. Irene Grootboom and others – is on violations of the right to housing and issues of forced eviction.[20]  It is based on Section 26 of the Constitution of South Africa, which states that   

“  (1) Everyone has the right to have access to adequate housing.

(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.

(3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions ”

44.        In the Constitution of South Africa, the formulation of the right to housing and of the correlative obligations of the State is very similar to articles 11 and 2 of the International Covenant on Economic, Social and Cultural Rights.  The formulation includes the obligation to take reasonable legislative and other measures (instead of the obligation to take steps by all appropriate means, including particularly the adoption of legislative measures), the obligation to achieve the progressive realization of the right (instead of the obligation to take steps, with a view to achieving progressively the full realization of the rights), and the notion of available resources.  This is important as the Supreme Court of South Africa found the case on housing to be justiciable. For the Court,

“[s]ocio-economic rights are expressly included in the Bill of Rights ; they cannot be said to exist on paper only. Section 7(2) of the Constitution requires the state “to respect, protect, promote and fulfil the rights in the Bill of Rights” and the courts are constitutionally bound to ensure that they are protected and fulfilled. The question is therefore not whether socio-economic rights are justiciable under our Constitution, but how to enforce them in a given case. This is a very difficult issue which must be carefully explored on a case-by-case basis”.[21]

45.        In its judgement, the

Constitutional Court

utilized the criteria of “reasonableness” to review government action or inaction on progressive realization of the rights within the limits of available resources.  The Court concluded that the government programme, by leaving out provision for people “in desperate need”, failed the test of reasonableness.  This means that, in South Africa, while the courts do not define policy, they retain a power to review the “reasonableness” of policies.[22]  This sets an important precedent as it shows that, although economic, social and cultural rights are limited by the provisions of “progressive realization” and “available resources” under the South African Constitution, these rights, including the right to food may be considered justiciable, in the sense that the Court may review the steps taken towards progressive realization. Similarly, the Committee on Economic, Social and Cultural Rights could be able to deal with a case concerning the non-fulfilment of economic, social and cultural rights, including the right to food, by applying the “appropriateness” test to States policies (instead of the ‘reasonableness’ criteria, given the different phrasing between the South African Constitution and the International Covenant).

IV. Conclusion

46.        In view of the recent developments in the definition and protection of economic, social and cultural rights, including the right to food, it is obvious that arguments against justiciability are no longer valid. Case law at the international, regional and national level related to the right to food show how the Committee on Economic, Social, Cultural Rights could determine in a concrete case if the right to food has been or has not been violated. Moreover, the development of an increasing level of protection of economic, social and cultural rights by judicial or quasi-judicial body at the international, regional and national levels, which has been decided by States, questions the credibility of out-dated arguments against the justiciability of economic, social and cultural rights.

47.        The right to food is justiciable and the Special Rapporteur is therefore of the opinion that ALL human rights recognised in the International Covenant on Economic, Social and Cultural Rights, including the right to food, should be subject to determination by the Committee, through the Optional Protocol, as is proposed in the existing draft Optional Protocol prepared by the Committee on Economic, Social and Cultural Rights.