Combating food adulteration from a rights perspective

FOOD adulteration has been the headlines of the dailies in Bangladesh for a decade or more. Despite much ado and sensation, the issue is yet to addressed metes and bounds. Right to safe food is a constituent element of the 'right to adequate food'. The right to safe food generally refers to 'the standards for the food that is available on the market, which should be safe' (the OHCHR Fact Sheet no. 34 on the right to adequate food). The World Health Organisation has emphatically asserted that “[t]he availability of safe food improves the health of people and is a basic human right.”
In this era of indivisibility, interdependence and interrelatedness of human rights, the right to safe food acclaims significant bearing on the right to health, right to food and most importantly right to life.  In its General Comment No. 14 on the domestic implementation of article 12, the ICESCR Committee interprets the right to health, as defined in article 12.1, as an inclusive right “extending not only to timely and appropriate health care but also to the underlying determinants of health, such as access to safe and potable water and … an adequate supply of safe food.”  Again, food safety and food security are the two sides of the same coin (FAO Dubai Food Safety Conference, 2009).
The days have long gone when it had been thought that only the civil and political rights require positive obligations on the part of the States. Now it is established that, both the civil and political rights and economic, social rights require positive action on the part of the state.  The committee established under the International Covenant on Economic, Social and Cultural rights in its General Comment no.3 (1990) has provided for three types of obligations for States. These obligations are duty to respect, protect and fulfill.  Duty to respect requires the State to refrain from interfering with the exercise of rights by the individuals. Duty to protect requires the State to ensure the enjoyment of rights by the individuals without any interference from other individuals i.e. this obligation requires horizontal safeguard. Finally, duty to fulfill requires State to make provisions as per its resources for the vulnerable groups.
Our focus is on the obligation of State to protect individuals from invasions of other individuals in enjoying their rights. The obligation of the State to protect right to food 'requires measures by the State', to quote the ICESCR Committee, “to ensure that enterprises or individuals do not deprive individuals of their access to adequate food” (GC no.12). The obligation to protect also includes ensuring that food put on the market is safe and nutritious.
States must therefore establish and enforce food quality and safety standards, and ensure fair and equal market practices (OHCHR Fact Sheet no. 34).  This follows, the government must take proactive actions so that the business enterprise, individuals and groups cannot adulterate the food. This obligation is as important as government take positive action to maintain law and order situation or make provisions for free and fair elections.  Legally speaking, this positive obligation requires a permanent and accomplished institution to be established by the State to ensure food safety as the government has established permanent courts for the administration of justice to ensure right to fair trial.
The ICESCR committee in its General Comment no.12 (1999) on the 'right to adequate food' construed the right to include inter alia “the availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances…” (Paragraph 8). To ensure food free from adverse substances requires “a range of protective measures by both public and private means to prevent contamination of foodstuffs through adulteration … or inappropriate handling at different stages throughout the food chain…” (paragraph12). Remarkably, the jurisprudence of the committee has, along with vertical obligation, provided horizontal obligation.
Another intriguing issue is that, whether adulteration of foodstuffs and State's inaction to prevent such adulteration affects the constitutional 'right to life'.  Article 32 of the Constitution requires that no person shall be deprived of life save in accordance with law. Right to life does not mean merely the protection of life and limb but also “the right to protection of health and normal longevity” (Dr. Mohiuddin Farooque v Bangladesh 48 DLR 438) .State may cause detriment to right to life not only by action but also by inaction (BLAST v Bangladesh, 2011). Now the question is which law permits the State's “hands off” in respect of food adulteration. So State's inaction in respect of food adulteration violates the right to life of the individuals within our constitutional dispensation.
The Supreme Court of Bangladesh has categorically held that 'right to life' includes 'right to unadulterated food' (Human Rights and Peace v. Bangladesh 2010 BLD 125). Pertinently, Indian supreme court has also interpreted 'right to safe food' within the contour of 'right to life' by holding that, “Enjoyment of life and its attainment, including right to life and human dignity encompasses, within its ambit availability of articles of food, without insecticides or pesticides residues, veterinary drugs residues, antibiotic residues, solvent residues, etc” (Centre for Public Interest Litigation v India, 2013).
Remarkably right to safe food itself is an independent enforceable right. In a number of cases, the European Court of Human Rights (ECHRs), for instance, concluded that the obligation to protect right to adequate food' was fully justiciable (Akkoç c. Turquie, 2000). Similarly, in the Ogoni case the African Commission on Human and People's Right found that the activities of a consortium constituted by the State Petroleum Company and Shell Oil violated the obligation to protect the right of food of the Ogoni people by holding that “[The Nigerian Government] should not allow private parties to destroy or contaminate food sources, and prevent peoples' efforts to feed themselves…” (ACHPRCom, SERAC, Center for Economic and Social Rights v. Nigeria, 2001).  
Right to life is the 'supreme right' under the International Covenant of the Civil and Political Rights (1966). Under the ICCPR State's obligation in respect of the covenant rights is both positive and negative (General Comment no.31 of the Human Rights Committee). So the right life not only requires the State to refrain from unlawful interference with the right to life but also to take positive measures to protect right to life both vertically and horizontally (para.8 of GC 31). So it may be argued that since food adulteration substantially affects right to life, States are obliged to prevent food adulteration both vertically and horizontally.
From the above discussion it transpires that, international and national human rights discourse enjoins a heavy obligation on the State to assume positive and proactive role to prevent food adulteration. Mere adoption of legislation or piecemeal and part -time actions on the part of the State does not address that emphatic obligation.

The writer is LL.M. student at the University of Dhaka.