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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 193
November 06, 2010

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Securing food security: A looming human rights challenge

Ershadul Alam

Right to food is an undeniable human right and is also unavoidable right for other forms of life in this mother planet. It is universal irrespective of race and sex, region and religion. It is the first and foremost right of a man. On recognition of its priority, almost all the human rights instruments of the world have set forth this right as one of the basic need for the people and made it obligatory for the states to comply with this fundamental human right. The Universal Declaration of Human Rights-the key human rights instrument of the world's people, has set forth a specific provision on the right to food as a standard of living adequate for the health and well-being of the people (Article 25). But the realization of the right is the challenge that loomed large threatening the health and well being of the present and future generations simultaneously. The right is universal and the challenge is global.

Even with this universal disposition of human need, it is yet to get a universal delineation in any international human rights instruments. The reasons are its obvious correlations with various factors which are different in perspectives. However, the Committee on Economic, Social and Cultural Rights conceptualised the access to food in a broader way which is applicable to every man, woman and child all the over world. To the Committee, access to food means physical and economic access to it.

Further development of the concept of the right to food is found in the observation of the Special Rapporteur on right to food. He has put some conditions which are very closely linked to the realization of access to food for all. Regular, permanent and unrestricted access are the prerequisites to deem that the right to food is ensured. But unfortunately, millions of people in the world do not have regular, permanent and unrestricted physical and economic access to food. They are deprived of having quantitatively and qualitatively adequate and sufficient food which thwarts their right to lead a dignified life and availing all other basic human needs.

Right to food is declared as the universal human right as per most international and regional human rights instruments. Those instruments also laid down some policies, guidelines and guiding principles to enable a country to be free from hunger and malnutrition and to cope with the challenges of food security. Implementation of the provision of Article 25 of the UDHR is a far cry so far the scarcity of food in the world is concerned. Standard of living adequate for health and well being is not possible leaving around half of the population in hunger and 50% of the child malnourished. How these malnourished children will overcome the future challenges and lead a productive life is another imminent challenge.

A more comprehensive approach regarding access to food is articulated in the ICESR where states are made responsible to ensure adequate standard of living including right to food, clothing etc. The terms and principles of the ICESCR followed those of the UDHR. Both the instruments considered adequate food, clothing and housing as the prerequisites for adequate standard of living, but the latter besides acknowledging the state's responsibility, has put some guiding principles in it to ensure access to food for the people. The scope of taking appropriate measures in national, regional and international level has been pointed out in the ICESCR.

Appropriate measures in national level call for government interventions in ensuring a society free from hunger and malnutrition. The government is under an obligation to accomplish and cherish three types of obligations-respect, protect and fulfill. The government which respects that right will refrain from taking any negative actions which are arbitrary in nature. Furthermore, it will take affirmative actions to foster it. Affirmative actions also include formulation of appropriate laws (article 2(1) of ICESCR) and policies and strengthening state mechanism as well. Initiating massive governmental programmes and schemes involving all government institutions is of paramount importance in this regard.

Right to food is particularly dealt with in several international and regional documents. The Rome Declarations and other documents are very specific about the right to food. The Universal Declaration on the Eradication of Hunger and Malnutrition which was adopted by the World Food Conference held in Rome is another one which described the ways for all states to take any measure appropriate to ensure food security. The state can implement internal legislation and can have sovereign judgement to deal with the challenge. The Additional Protocol to the American Convention on Human Rights recognized some economic, social and cultural rights for it citizenry which includes right to work, the right to health and the right to food etc. So, the right to food is guaranteed in almost every country or region by any international or regional human rights instruments. The problem lies with the implementation of those instruments by states concerned.

The states have to formulate laws and policies in the light of those international and regional human rights instruments. The basis of necessity of incorporating the right to food in the constitution cannot be ignored. Getting the constitutional status of any right or provision indicates the priority of issue. It makes the government institutions accountable and sincere in respect of taking further actions to achieve the goal. Regarding right to food, we are yet to have such legal framework to the extent that could be enforced by law. Some rights groups are advocating for incorporating the right to food in the constitution on the plea that there is no reference to it in our constitution. But, article 15 of the constitution laid down the provision on some basic necessities including the right to food, though those are not enforceable by law as the same are directive in nature for the state. However, the right to life and personal liberty is cited in our constitution in the fundamental rights chapter. But, the relation between right to life and right to food is yet to be established in legal interpretations.

Unlike ours, the constitutions of some other countries have included the right to food as a fundamental right. Of late in this year, the constitution of the republic of Kenya has recognized the right to food in their constitution. The provision has been articulated in article 43. The article referred the right to adequate food in the context of economic, social and cultural rights. The provision of this article has followed the principles contained in the ICESCR. The constitution also acknowledged the duty of the state and state organs to observe, respect, protect, promote and fulfil the rights. South Africa has incorporated the provisions in the constitution that was adopted in 1996 (Article 27). The constitution also obligated the state to comply with the provision. It clearly says, “The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights (Article 27 (2)). The constitutions of Ecuador, Nepal and some other countries have put the right to food in their constitutions. Some countries like India, Brazil, Guatemala, Mali, Nicaragua and Malawi have enacted special legislations regarding right to food. Some judicial developments have also been attainted in those countries. The courts of those countries are treating the issue very progressively and deliver progressive decision on the right to food. About 30 countries have included right to food in their constitutions.

It is to be added here that food security is yet to be met in those countries where right to food is included in their constitutions. Even formulation of special laws is not enough to ensure food security for the people. The ground reality is that incorporation of the right in law book cannot ensure the realization of the rights. Scarcity of food is necessarily not the only reason of hunger and malnutrition as has been observed by Amartya Sen. The prevalence of Complex interrelations amongst the multiple factors play the pivotal role behind issue.

The scarcity of food and inaccessibility of this right are acute in our country and thus the challenge is ominous. Many people of our country live below the poverty line and are not financially capable to purchase their daily food resulting severe malnutrition and unhealthy life. Most of the negative factors are present in our national perspective. To meet the challenges in our country is more difficult than most other countries of the world.

A coordinated approach amongst the government machineries is utmost important to overcome the situation. The initiatives as indicated by those human rights instruments are to be implemented in national jurisdiction. Intergovernmental coordination in technology transfer, knowledge sharing and all other appropriate measures to combat the challenge is necessary. And last but not the least, participation of people will give impetus to the struggle for a society free from hunger.

The writer is a lawyer and researcher.




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