28/65 Report of the Special Rapporteur on the right to food, Hilal Elver - Access to justice and the right to food: the way forward

GE.15-00304 (E)



Human Rights Council Twenty-eighth session

Agenda item 3

Promotion and protection of all human rights, civil,

political, economic, social and cultural rights,

including the right to development

Report of the Special Rapporteur on the right to food, Hilal Elver*

Access to justice and the right to food: the way forward

Summary

In the present report, submitted to the Human Rights Council in accordance with its

resolution 22/9, the Special Rapporteur on the right to food explores the obstacles faced by

those wishing to seek remedy for violations related to the right to food by analysing the

current international legal framework, and identifying examples of good practice as a

means of encouraging States to develop judicial remedies in accordance with the Optional

Protocol to the International Covenant on Economic, Social and Cultural Rights. The report

also addresses some issues related to extraterritorial obligations in relation to the right to

food.

* Late submission.

United Nations A/HRC/28/65

General Assembly Distr.: General 12 January 2014

Original: English

Contents

Paragraphs Page

I. Introduction ............................................................................................................. 1 3

II. International legal framework ................................................................................. 2–13 3

A. Overview ........................................................................................................ 2–5 3

B. A new era: adoption of the Optional Protocol and access to justice ............... 6–13 4

III. Recent framework laws, jurisprudence and the justiciability of the right to food ... 14–25 5

A. Latin America ................................................................................................. 17–20 6

B. Asia ................................................................................................................. 21–22 7

C. Africa .............................................................................................................. 23–24 8

D. Europe ............................................................................................................. 25 8

IV. Obstacles to justiciability and the right to food ....................................................... 26–37 9

A. Resistance from some States and lack of political will ................................... 27–29 9

B. Lack of awareness and obstacles for rights holders ........................................ 30–33 10

C. Institutional and structural barriers ................................................................. 34–37 10

V. Extraterritorial obligations ...................................................................................... 38–70 11

A. Economic globalization and right to food ....................................................... 38–40 11

B. Extraterritorial obligations of States ............................................................... 41–47 13

C. Holding transnational corporations accountable ............................................. 48–70 14

VI. Conclusion and recommendations ........................................................................... 71–72 20

I. Introduction

1. In her first annual report submitted to the Human Rights Council in accordance with

resolution 22/9, the Special Rapporteur on the right to food explores the obstacles faced by

those wishing to seek remedy for violations related to the right to food by analysing the

current international legal framework, and identifying examples of good practice as a

means of encouraging States to develop judicial remedies in accordance with the Optional

Protocol to the International Covenant on Economic, Social and Cultural Rights. The report

will also examine the question of extraterritorial implementation in relation to the justiciability of the right to food. This report will build on the work of the Special

Rapporteur’s predecessors in this area.1

II. International legal framework

A. Overview

2. The right to food was first recognized in article 25 of the Universal Declaration of

Human Rights. Since then it has been recognized in a number of international instruments,

with the International Covenant on Economic, Social and Cultural Rights (hereinafter “the

Covenant”) representing the most significant treaty on the right to food. The Covenant (to

date ratified by 162 States) has been vital in shaping and developing the normative

framework on the right to food. The treaty defines the right to food as a distinct and

fundamental right to be free from hunger and to have sustainable access to food (art. 11). It

outlines specific obligations for all States parties to take measures to progressively attain

the full realization of the right to food.

3. In the wake of the momentum generated by the 1996 World Food Summit,2 which

highlighted the need to further “clarify the content of the right to adequate food and the

fundamental right of everyone to be free from hunger”,3 the Committee on Economic,

Social and Cultural Rights in 1999 adopted general comment No. 12 on the right to

adequate food (hereinafter, “general comment No. 12”) which clarifies the implications of

three levels of State obligation, including the obligation to respect, protect and fulfil (paras.

14 and 15).

4. In addition to legally binding treaties, the right to food has also been enunciated in

various international standards, the most significant of which are the Voluntary Guidelines

to Support the Progressive Realization of the Right to Adequate Food in the Context of

National Food Security (Right to Food Guidelines). The Right to Food Guidelines were

developed as a practical tool for States to assist them in implementing their obligations at

the domestic level under article 11 of the Covenant. The year 2014 marked the tenth

anniversary of the guidelines and provided an opportunity to evaluate the impact thereof on

national implementation. The present report will highlight some examples of good practice

in that regard.

5. While some critics suggest that the voluntary nature of the Right to Food Guidelines

limits their usefulness, they were adopted by member States of the Food and Agriculture

1 See references in the reports of the former Special Rapporteurs, Jean Ziegler (E/CN.4/2002/58) and

Olivier De Schutter (A/68/288).

2 See Rome Declaration on World Food Security.

3 1996 World Food Summit Plan of Action, objective 7.4.

Organization (FAO) by consensus. States cannot therefore claim to be unaware of or refuse

to comply with the guidelines. Over the years, in many formal settings, the Governments

have reiterated their commitment to and support for the guidelines.

B. A new era: adoption of the Optional Protocol and access to justice

6. The interdependence and indivisibility of economic, social and cultural rights and

civil and political rights have long been asserted within international law, yet in practice

economic, social and cultural rights have typically been relegated to second place within

the international framework, with civil and political rights taking centre stage, particularly

when it comes to implementation. While the International Covenant on Civil and Political

Rights includes an explicit provision requiring States “to develop the possibilities of

judicial remedy” (art. 2, para. 3 (b)), no such specific provision is explicitly mentioned in

the International Covenant on Economic, Social and Cultural Rights. It should be noted,

however, that the Committee has clarified that the obligation under article 2, paragraph 1,

of the Covenant to “take steps … by all appropriate means” includes the provision of

judicial remedies.4

7. The reluctance of a number of States to recognize that economic, social and cultural

rights are justiciable has done much to propagate unfounded misconceptions thereon. Those

countries opposed to the justiciability of those rights argue that such a notion may interfere

with State sovereignty5 claiming that it is inappropriate for courts to adjudicate on social

and economic policy. There is also a perception that social and economic rights set forth

political objectives and are too vague to be enforceable.6 The suggestion that these rights

are resource-dependent and cannot be satisfied where there is a lack of capital, and the idea

that these rights only impose positive obligations on States and civil and political rights

give rise to negative ones, has also led to resistance from some States.

8. The justiciability debate continues to provoke controversy at the international level.

However despite strong opposition from a number of States an Optional Protocol to the

Covenant, establishing an individual complaints procedure, was finally adopted in 2008. Its

subsequent entry into force in May 2013 was hailed as “potentially one of the most

important developments in human rights protection at the UN level in a generation”.7

9. The Optional Protocol is intended to complement rather than replace national legal

systems and should not be considered as the principal means of seeking justice. The

Optional Protocol grants individuals, or groups of individuals under the jurisdiction of a

State party, the right to submit communications about alleged violations of any economic,

social or cultural right to the Committee on Economic, Social and Cultural Rights (art. 2).8

10. Article 2 of the Optional Protocol requires that authors of communications must be

under the jurisdiction of the State party responsible for the violation, and that the State must

have ratified both the Covenant and the Optional Protocol. However, the Covenant

indicates no restriction to territorial jurisdiction and it will remain to be seen whether the

4 General comment No. 3 on the nature of States parties’ obligations, para. 5.

5 George Kent, Freedom from Want: The Human Right to Adequate Food (Georgetown University

Press, Washington, D.C., 2008).

6 International NGO Coalition for an Optional Protocol to the International Covenant on Economic,

Social and Cultural Rights, “Celebration of the Entry into Force of the OP-ICESCR”, 2013.

7 Ibid.

8 The development of a communication process encompassing all economic, social and cultural rights

represents an innovative approach to ensuring remedy for victims of violations.

cases to be examined under the Optional Protocol concentrate principally on the territorial

link.9

11. Victims of violations now have a means of making effective appeals through an

international mechanism, once they have exhausted the grievance mechanisms within their

own countries, or if there is an excessive delay in processing their claims through national

procedures. The Optional Protocol also provides for interim measures for victims in

exceptional circumstances in order to prevent irreparable damage to victims (art. 5).

12. The Optional Protocol also permits States to declare that they recognize the

competence of the Committee on Economic, Social and Cultural Rights to review inter-

State communications in cases where one State party considers that another State party has

failed to fulfil its obligations under the Covenant. The Committee may also have recourse

to an inquiry procedure whereby it would consider allegations from reliable sources

indicating grave or systematic violations by a State party of any of the rights set forth in the

Covenant.10 While the Covenant does not have a mechanism to enforce decisions, findings

and decisions by the Committee can increase awareness and scrutiny of specific violations

at the international level. An international peer review mechanism such as the universal

periodic review could be employed as a means of highlighting the failure of States to

implement decisions under the Covenant.11

13. As outlined above, the right to food was once considered a controversial “positive”

right, however recent years have witnessed a paradigm shift in terms of the global discourse

on the right to food, with progress in jurisprudence and academic deliberations affirming

that the right to food is justiciable.12 With the ratification of the Covenant, the right to food

will have greater publicity, especially when NGOs and individuals start to use various

remedies. The right to food is now a right than can be legitimately claimed. Complaint

procedures remind governments of their responsibility to respect, protect and fulfil the right

to adequate food. The Optional Protocol will be influential in ensuring the implementation

of the right to food at the international and national level.

III. Recent framework laws, jurisprudence and the justiciability of the right to food

14. The Right to Food Guidelines have done much to raise awareness and increase

recognition of the right to adequate food and nutrition as a human right. They have also

been instrumental in promoting the importance of recognizing the right to food in national

legal frameworks. Guideline 7, in particular, invites States to initiate constitutional or

legislative review to facilitate the progressive realization of the right to adequate food in the

context of national food security. States are also advised to envisage “administrative, quasi-

judicial and judicial mechanisms to provide adequate, effective and prompt remedies

accessible, in particular, to members of vulnerable groups”.

15. Constitutional provisions and framework laws can be effective means of promoting

the progressive realization of the right to food at the domestic level. The adoption of

9 Riedel, Giacca and Golay (eds,), Economic, Social and Cultural Rights in International Law (Oxford

University Press, 2014), p. 30.

10 International NGO Coalition for OP-ICESCR, “A toolkit for action (Booklet 3), Why should States

ratify the Optional Protocol on Economic, Social and Cultural Rights?”, p. 1.

11 Ibid.

12 Jose Luis Vivero Pol, “Hunger for Justice in Latin America: the justiciability of social rights in

hungry democracies” (2011).

sectoral legislation will ensure that States adequately address various sectors that impact

significantly on various dimensions of food security.

16. Over the last few years, there has been an important increase in the number of States

that have adopted provisions containing explicit recognition of the right to food or freedom

from hunger.13 The following section will provide an overview of some recent examples of

case law in relation to the justiciability of the right to food at the domestic and regional

level.

A. Latin America

17. Latin America has shown itself to be the region of the world that has made the most

progress in terms of developing legal frameworks that promote the right to food. With more

than eight countries possessing specific laws aimed at promoting and protecting the right to

food and a number of bills pending in National Assemblies for consideration,14 the right to

adequate food is also referred to or explicitly recognized in several constitutions, including

those of Brazil, Colombia, Cuba, Ecuador, Guatemala, Haiti, Nicaragua and Paraguay.15 In

some cases, the constitutional provisions refer directly to the right to food, and its

applicability to the whole population.16 In other cases, the right is directed at specific

groups,17 while State signatories of the Covenant provide that it be applied directly through

the constitution. The following cases are examples of where the right to food has been used

as a legal argument to protect social rights.

18. In a 2013 decision,18 the Constitutional Chamber of the Supreme Court of

El Salvador admitted a habeas corpus writ petition against the penitentiary administration in

relation to a claimant in detention suffering from diabetes and hypertension. The applicant

argued that the failure to provide him with adequate food and an appropriate diet violated

his right to health and physical integrity. While the detainee’s petition was rejected on the

grounds that medical evidence did not support the claim, the case demonstrates the

willingness of the court to consider the protection of economic, Social and cultural rights

under habeas corpus procedures. The judgment handed down in this case is significant on

two counts: firstly, it demonstrates that all human rights are interconnected and indivisible;

and, secondly, even though medical evidence was insufficient, the court makes the

connection between those suffering from diabetes and their need for adequate and healthy

food, which creates an important precedent for future cases.

19. Judicial protection of land as a source of livelihood can be seen in judgments by the

Constitutional Court of Colombia. One such significant case involves the community of

Las Pavas, whose members occupied unused land in 1997 and began farming activities to

feed themselves. Over the years, the community had been repeatedly subjected to various

forms of intimidation and harassment, including attacks by paramilitary groups and the

destruction of crops and food. A formal eviction order was issued in 2009 at the request of

13 For a full list, see FAO, Legal developments in the progressive realization of the right to food (2014),

http://www.fao.org/3/a-i3892e.pdf, or refer to FAOLEX, an online database of national legislation

related to food and agriculture (available from http://faolex.fao.org).

14 Ibid.

15 Ibid.

16 Brazil, Ecuador, Guatemala, Guyana, Haiti, Nicaragua, Panama and Suriname.

17 Bolivia (Plurinational State of), Brazil, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador,

Guatemala, Honduras, Panama, Paraguay, Peru and Uruguay. 18 José Alberto Preza Hernández v. Director General de Centros Penales y la Directora de la

Penitenciaría Central “La Esperanza”, Constitutional Chamber of the Supreme Court of El Salvador,

decision HC 12-2012 (2012).

two private companies, who claimed ownership of the land. In 2011, the Colombian

Constitutional Court delivered its judgment, finding that the actions leading to the eviction

of the families of Las Pavas were unlawful and violated the right to a dignified existence,

among other rights.19

20. In 2013, a coalition of NGOs Guatemala sin Hambre engaged in strategic litigation

to claim the right to food of children suffering from chronic malnutrition and living in

conditions of extreme poverty. The judgements were delivered in April 2013 by the Child

and Adolescence Court of the Zacapa Department which, based on the facts, found

violations of the right to food, the right to life, the right to housing and the right to an

adequate standard of living. Specifically with regard to the right to food, the court grounded

its reasoning on article 51 of the Constitution, which protects the right to food for children,

as well as on article 11 of the Covenant and article 25 of the Universal Declaration. To

define the right to food and the obligations that stem from it, the court cited general

comment No. 12.20

B. Asia

21. The constitutional jurisprudence of India provides for the justiciability of economic,

social and cultural rights based on “the right to life”. This constitutional right was central to

the case of People’s Union for Civil Liberties (“PUCL”) v. Union of India. In mid-2001,

public food and employment programmes failed to provide food to deprived people in the

impoverished and drought-stricken State of Rajasthan. The Supreme Court of India was

petitioned by PUCL to compel the Government to respond to the hunger emergency. In

response to the submissions, the Supreme Court held that the right to food was enshrined in

the Constitution under the right to life provision in article 47, which requires that the State

undertake measures to improve the nutritional state of the population. The Court handed

down a series of resolutions which commenced in 2001 requiring State governments in

India to implement food distribution programmes for the most disadvantaged. The Court’s

resolution had a considerable impact on the realization of the right to food in India,21 and

provides an example of the influential role played by the judiciary in encouraging a

legislative body to develop human rights legislation.

22. India has led the way, not only at the regional level, but also globally, in terms of

developing jurisprudence on economic, social and cultural rights. Its Constitution provides

a strong legal framework for the protection and promotion of human rights, with article 47

noting that “States shall regard the raising of the level of nutrition and the standard of living

of its people and the improvement of public health as among its primary duties”. It has also

recently joined a select group of countries that are legally obliged to ensure the distribution

of subsidized food grains to its people. With the historic passing of its National Food

Security Act in September 2013, India has pledged to provide heavily subsidized food

grains to approximately two thirds of its population.22 The National Food Security Act will

amount to the largest food security programme in the world, and aims to reduce

malnutrition and improve food security. It also promotes gender-based rights and social

inclusion of women, and includes provision for social monitoring and complaint

19 For more information on Las Pavas case, see www.fian.org/what-we-do/case-work/colombia-las-

pavas/.

20 Ibid.

21 Christophe Golay, The Right to Food and Access to Justice: examples at the national, regional and

international levels (FAO, 2009), p. 57.

22 FIAN India, “The National Food Security Act: A long road towards the realization of the right to

food”, Right to Food Journal, vol. 8, No. 1 (2013).

mechanisms. While the Act has received criticism, particularly owing to its failure to

address the nutritional aspect, and for placing too much emphasis on public distribution23

without tackling the root causes of poverty and hunger, the Special Rapporteur commends

Indian efforts to address chronic malnutrition, and encourages India to work with relevant

stakeholders to tackle any potential gaps that may prevent this innovative approach from

achieving its full potential

C. Africa

23. The following examples illustrate the positive role played by regional human rights

mechanisms. In the case Centre for Minority Rights Development (Kenya) and Minority

Rights Group International on behalf of Endorois Welfare Council v. Kenya, the Endorois,

a primarily pastoralist indigenous community, were removed from their lands by the

Government of Kenya to establish a wildlife reserve. The African Commission found

Kenya to have violated articles 8, 14, 17, 21 and 22 of the African Charter. The

Commission noted that, as a consequence of its removal, the community had been

“relegated to semi-arid land”, which was unsuitable for pastoralism. The ability to graze

animals, a key means of subsistence for the community, had become impossible as a result

of loss of their land and this threatened the community’s survival.24

24. In its case SERAC v. Nigeria, the African Commission held that the treatment by

Nigeria of the Ogoni indigenous community violated the right to food implied in the

African Charter. In their statement to the African Commission, the NGOs submitting the

claim contended that: “the Nigerian government ... destroyed and threatened Ogoni food

sources through a variety of means. The government ... participated in irresponsible oil

development that poisoned much of the soil and water upon which Ogoni farming and

fishing depended. In their raids on villages, Nigerian security forces have destroyed crops

and killed farm animals. The security forces have created a state of terror and insecurity

that ... made it impossible for many Ogoni villagers to return to their fields and animals.

The destruction of farm lands, rivers, crops and animals created malnutrition and starvation

among certain Ogoni communities.”25

D. Europe

25. While on the whole European countries have been more reluctant to accept the

justiciability of economic, social and cultural rights, there have been some significant cases.

For example, in the 2012 German Federal Constitutional Court judgment 1 BvL 10/10, the

court ruled on whether cash benefits for asylum seekers provided by the Asylum Seekers

Benefit Act were compatible with its Constitution. The court relied on earlier decisions to

reiterate that the State is under an obligation to ensure a “dignified minimum existence”,

defined as a “comprehensive fundamental rights guarantee” which includes access to food,

clothing, household items, housing, heating, hygiene health and social assistance to persons

in need. The benefits awarded to the asylum seekers under the law in question were deemed

insufficient to guarantee a dignified minimum existence. The court also reaffirmed that

benefits must be calculated on the basis of “real and actual needs” and thus be measured

realistically. The court noted that the benefits prescribed under the Asylum Seekers Benefit

Act had not increased since 1993, even though the cost of living in Germany had risen by

23 Ibid., p. 9.

24 See FAO, Legal developments in the progressive realization of the right to food (2014).

25 See ibid.

30 per cent in that period. As a result, a number of provisions of the act were declared

unconstitutional. The court ordered the enactment of new legislation that would ensure a

dignified minimum standard of living and introduced a transitional scheme that would

provide higher cash benefits in the interim.26

IV. Obstacles to justiciability and the right to food

26. While there has been considerable legislative and judicial progress in many

countries throughout the world since the adoption of the Right to Food Guidelines (see

A/68/288), examples of cases whereby national courts have actually issued rulings on the

regulations relating to the right to food are scarce.27 The only way that the full realization of

the right to adequate food and nutrition can be achieved is by ensuring that the rights of

victims are protected. Restrictions on justiciability must therefore be prevented. This

section will seek to highlight some of the obstacles that continue to hamper progress in this

regard.

A. Resistance from some States and lack of political will

27. A rights-based approach to food security is paramount to ensure that the

fundamental right to be free from hunger is upheld, with States obliged to do everything in

their power to guarantee that everyone has access at all times to adequate, safe and nutrient-

rich food in order to lead healthy lives. Yet, despite the fact that the right to food has been

enshrined in international law, many States remain reluctant to recognize it and to

constitutionalize it as a basic right with justiciable effect.28

28. While the ratification of the Optional Protocol to the Covenant represented a

significant step in terms of ensuring justice for the victims of violations of economic, social

and cultural rights, to date only 15 States are currently party thereto, in comparison with

115 parties to the Optional Protocol to the International Covenant on Civil and Political

Rights.29 This in itself is representative of the fact that many States have failed to develop a

judicial culture of recognition in practice, or the necessary legal frameworks required to

ensure that the rights enshrined in the Covenant, including the right to food, are justiciable.

In some countries, it is the case that international human rights conventions are not

considered as formal sources of law and, even where they may be incorporated into national

law, these rights may not provide criminal punishment or financial compensations, but

rather expresses a moral conviction without legal force.30 In some States, even when

justiciable rights are enshrined in the Constitution, there is a reluctance to acknowledge

their relevance. There is also certain reluctance at the regional level, with many European

States failing to recognize the direct applicability of the Covenant in domestic law.31 In

Africa, the African Commission on Human and Peoples’ Rights provides no option for

complaints relating to the violation of the right to food.

29. Accountability at international, regional and national levels is paramount to ensuring

that the right to food and its correlative obligations are being implemented. At the domestic

level, it is imperative that constitutional principles and framework laws are established as a

26 For more details on this case see www.escr-net.org/node/364979.

27 Vivero Pol, “Hunger for Justice in Latin America”, p. 14.

28 Civil Society Synthesis Report, 10 Years of the Right to Adequate Food Guidelines (2014).

29 As of June 2014.

30 Vivero Pol, “Hunger for Justice in Latin America”.

31 Civil Society Synthesis Report, 10 Years.

means of providing an appropriate institutional structure to ensure the progressive

realization of the right to food. In some cases, however, even where States have taken the

necessary steps to develop framework laws and policies in order to promote the right to

food, a lack of political will has prevented implementation and enforcement of these laws.32

B. Lack of awareness and obstacles for rights holders

30. A lack of awareness of legal rights and entitlements, as well as the State’s

obligations and duties to protect these rights, is a major barrier to achieving the enjoyment

of the full range of rights, including economic, social and cultural rights. General

knowledge and understanding of judicial and adjudicatory mechanisms as a means of

enforcing basic rights is severely lacking in many countries.

31. Access to public information in relation to the adoption of new laws or amendments

to existing legislation is crucial for ensuring justiciability. States are obliged to ensure that

this information is made readily available and easily accessible for everyone without

discrimination. Particular effort should be made to disseminate information in a format that

is user-appropriate, taking into consideration the individual needs of persons with

disabilities, and those with low levels of literacy. Migrants and minority groups should not

be prevented from accessing information owing to linguistic barriers, and materials should

be adapted accordingly. Logistical and financial barriers should also be addressed by taking

into consideration the difficulties faced by those living in remote rural areas and those

living in poverty.

32. Awareness of the right to food and the obligations pertaining thereto need to be

heightened amongst rights holders. It is essential that lawyers receive training to enable

them to argue effectively for the upholding of the right to adequate food and judges need to

acquire the knowledge to grasp and accept such arguments as appropriate. Effective access

to legal institutions facilitates the inclusion of marginalized people in the development

process, and provides citizens with a means to file actionable grievances against the

government for the failure to progressively meet economic, social and cultural rights.

33. Women, in particular, face significant barriers to accessing justice given their

subordinate position in many societies, and the lack of information and knowledge about

their rights and the ways to claim their protection. Indeed, women in rural areas often are

unaware of their legal rights. In many rural areas, sociocultural norms make women fearful

of retribution or ostracism if they pursue land claims or seek protection from violence. As a

result, women tend to be denied access to justice more often than men, and are also more

likely to be denied justice altogether.33

C. Institutional and structural barriers

34. In addition to a lack of awareness of their rights, victims of violations face

considerable institutional and structural barriers. For many, particularly for those living in

rural and remote areas and peri-urban settings, simply accessing a court is in itself a

significant challenge. In many countries, municipal courts do not exist and the legal

epicentre is located in the capital only, with logistical and monetary implications for those

who live beyond the city. In countries where municipal and subnational mechanisms are

32 Civil Society Synthesis Report, 10 Years, p. 31.

33 FAO submission to the Committee on the Elimination of Discrimination against Women, “Rural

Women and Access to Justice” (2013), p. 5.

available, a lack of affordable and dedicated legal assistance and judicial corruption often

hinders access. In cases where rights holders have the means to submit a case, often

ordinary courts, which are more accessible for families facing food security,34 are unaware

of the issue — with the right to food not considered as related to other citizen’s rights.

Complex and inflexible court systems also have a significant impact on victims, often

requiring a high burden of proof for applicants. Some courts may also be averse to

accepting collective, or public interest mechanisms or innovative fact-gathering or remedial

procedures. In such cases, victims are dissuaded from submitting claims. Some countries,

however, have tackled the problem by establishing public interest litigation procedures that

authorize individual and collective claims.35

35. The role played by judges also has a significant impact on the judicial interpretation

of economic, social and cultural rights. In many countries, it is often the case that judges

based outside of urban area have little knowledge of human rights law, and are therefore

less inclined to consider international standards when making a judgement. The reliance of

the judiciary on the State for its legitimacy and the appointment of judges also has

considerable influence over the decision-making process, with historical relations between

the State and the judiciary often coming into play.

36. Ensuring justiciability of the right to food is also hindered by the fact that individual

cases often end up stagnating within the court system amidst protracted, costly and

bureaucratic proceedings, while in some instances collective cases influenced by politically

motivated activities take precedence and serve as sensationalist media fodder. As a result,

many cases have been neglected with no follow-up.

37. Quasi-judicial bodies, such as ombudspersons, have the potential to consider cases

of human rights violations. However, more often than not, they tend to focus solely on civil

and political rights, with few having taken the necessary steps to introduce complaint

mechanisms for economic, social and cultural rights. A general lack of awareness by

affected populations that such a mechanism for filing a grievance exists has also done little

to encourage applications. However there are some examples of progress in this regard,

such as the Ombudsman’s Office in Ecuador that took the initiative and established a unit

for economic, social and cultural rights, while the Procuradoria for Human Rights in

Guatemala has been submitting reports on the right to food since 2007, in line with its Food

and Nutrition Security Law of 2005.

V. Extraterritorial obligations

A. Economic globalization and right to food

38. The universality of human rights has been the underlying inspiration for all human

rights law and standards. While much emphasis has been placed on achieving the universal

acceptance of the content of rights, less attention has been given to attaining universality as

to the content of obligations.36 Economic globalization and the increasing involvement of

corporate entities in State affairs have challenged the traditional understanding of

territoriality of human rights. The powerful influence of transnational corporations

34 Vivero Pol, “Hunger for Justice in Latin America”, p. 20.

35 Ibid.

36 Sigrun I. Skogly, “Right to adequate food: national implementation and extraterritorial obligations”,

in Max Plank Yearbook of United Nations Law, vol. 11 (2007), p. 341.

(TNCs)37 and international financial institutions (IFIs) has led to a marked change in the

way in which the principles of territoriality intersect with international human rights

standards.

39. Within the food and agriculture sector, approximately ten corporations control and

monopolize the commercial seed and global pesticide markets, as well as food retailers.38 In

addition to their financial power, TNCs significantly influence law and policymaking

processes both at the international and national level.39 Similarly, IFIs exercise considerable

influence over national decision-making in relation to food and agricultural policies. Many

developing countries are compelled to implement projects that jeopardize economic, social,

and cultural rights in return for economic and financial aid. In recent decades, there have

been significant efforts to alter the policy approach undertaken by IFIs, especially the

World Bank, in relation to supporting development projects that have a harmful effect on

human rights and the environment. Moreover, bilateral, and regional foreign trade

agreements have facilitated the privatization, deregulation and growth of extractive

industries around the globe, a development that has had significant impacts on food security

and health. Globalization has highlighted and exacerbated socioeconomic disparities

throughout the world, with the result that global social inequality is not only expressed in

terms of inter-State justice, but as implicating human rights obligations as well.40 States are

often placed in a precarious situation as a result of dubious corporate activities. Developing

countries are particularly vulnerable, as in an attempt to attract foreign investors they accept

trade rules that adversely impact agricultural policies and follow growth-oriented economic

policies to achieve short-term political and budgetary benefits.

40. Development-induced displacement is an increasingly widespread phenomenon with

devastating impact. An estimated 15 million people each year are forced to relocate and

resettle as a result of such interventions.41 Despite some of the more recent efforts to

highlight land dispossession, as yet global institutions have been unable to discourage the

practices and processes that undermine land rights, prevent equitable access and establish

the context for large and small-scale displacements.42 The expanding mining sector has

contributed to strong economic growth in some countries, with mining and oil concessions

dramatically increasing in countries. The industry has however also generated social

conflict in many States, particularly in rural areas, with mining activities coming into direct

competition with small-scale agriculture. Indigenous peoples are particularly vulnerable as

they are often forced to leave their land and sources of livelihood. A lack of engagement

37 See Global Trends, Corporate clout 2013: Time for responsible capitalism – Executive summary.

Available from www.globaltrends.com/knowledge-center/features/shapers-and-influencers/190-

corporate-clout-2013-time-for-responsible-capitalism.

38 See www.econexus.info/sites/econexus/files/Agropoly_Econexus_BerneDeclaration_wide-

format.pdf.

39 See interim report of the Special Representative of the Secretary-General on the issue of human rights

and transnational corporations and other business enterprises, E/CN.4/2006/97; Jennifer Westaway,

“Globalization, Transnational Corporations and Human Rights – A New Paradigm”, International

Law Research, Vol. 1, No. 1 (2012), p. 63 ff.

40 Thomas Pogge, World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms

(Cambridge, Polity Press, 2002).

41 Penny Green, Kristian Lasslett and Angela Sherwood, “Enclosing the commons: predatory capital and

forced eviction in Papua New Guinea and Burma” in The Routledge Handbook on Migration and

Crime (Abingdon, Routledge, 2014).

42 Lea Brilmayer and William J. Moon, “Regulating Land Grabs: Third Party States, Social Activism,

and International Law”, in Rethinking Food Systems (2014); Saturnino M. Borras Jr. and Jennifer

Franco, “Towards a broader view of the politics of global land grab: rethinking land issues, reframing

resistance”, ICAS Working Paper Series No. 001.

and opportunities for participation in decisions that affect their lives has left many

communities in situations of dire poverty and without access to adequate food and nutrition.

B. Extraterritorial obligations of States

41. In recent years the scope of a State’s human rights obligations has progressively

evolved to include duties to exercise jurisdiction over activities that are connected to one

State but have an impact in another. In principle, corporations can also be held accountable

either by States responsible for regulating, monitoring and preventing human rights

violations; or through intergovernmental instruments or voluntary codes of conduct.

42. Although international human rights law presupposes the consent of a State to

establish an obligation, the evolution of human rights has included the extension of duties

under international law directly to non-State actors, including individuals and business

enterprises.

1. Obligation to respect

43. States should ensure that their policies and practices do not lead to violations of the

right to food, either directly or indirectly, for people living in other countries, as well as

their own citizens. This obligation is simply the extension of the “no harm” principle of

States in international law. The extraterritorial obligations of States in relation to the right

to food are referred to in general comment No. 12 which notes that “food should never be

used as an instrument of political and economic pressure”. States should therefore refrain

from implementing food embargoes or similar measures that endanger conditions for food

production and water supply, and access to goods and services essential for securing the

right to food.43 Similarly IFIs should also refrain from taking decisions that could lead to

potential violations of the right to food in other countries. As multi-State actors, IFIs should

be held accountable for human rights violations by other member States that have ratified

the Covenant.

2. Obligation to protect

44. The majority of extraterritorial cases derive from the host States failure to fulfil its

obligation to protect where private companies are impacting upon human rights. While

home States of companies operating abroad have an obligation to clearly set out the

expectation that such companies respect human rights throughout their operations, it is the

host States which have the primary responsibility to prevent human rights violations,

including by TNCs operating within its jurisdiction. However, agreements between TNCs

and host governments often limit the host State’s ability to perform these duties. Indeed

some States have even taken retrogressive steps in this regard. A recent study44 indicates

that some jurisdictions have formulated laws that effectively shield business from being

held accountable for human rights violation and make it difficult for victims to obtain an

effective remedy. In some instances, States themselves may have been complicit in

perpetrating violations. In many cases, however, TNCs also impact positively on a

43 Committee on Economic, Social and Cultural Rights, general comments No. 12, para. 37, and No. 15

(2002) on the right to water, para. 32. See Ziegler et al., The Fight For the Right to Food

(Basingstoke, UK: Palgrave Macmillan, 2011), p. 81.

44 Gwynne Skinner, Robert McCorquodale and Olivier De Schutter, “The Third Pillar: Access to

Judicial Remedies for Human Rights Violations by Transnational Business” (International Corporate

Accountability Roundtable (ICAR), CORE and the European Coalition for Corporate Justice (EECJ),

2013).

country’s development, the political relevance of which can significantly influence the

judicial process.45

45. Implementing national legislation is essential to ensuring that States hold TNCs

accountable abroad. Indeed, member countries of the Organisation for Economic Co-

operation and Development (OECD) have already made voluntary commitments in this

regard by developing a code of conduct. The European Union has also developed a

resolution for European corporations operating in developing countries. Under international

law, however, States are generally not liable for the conduct of non-State actors, unless the

non-State actors are de facto agents of the State, or were acting “on the instructions of, or

under the direction or control of, that State in carrying out the [wrongful] conduct”.46 To

date, there is no international jurisprudence on the issue of home State accountability for

TNC actions.

46. Some States have failed to take vigorous steps to ensure that victims have access to

judicial remedies for human rights abuses that have arisen extraterritorially owing to the

activities of businesses or their subsidiaries. By creating or allowing these obstacles and

barriers to remain, States have failed in their duty to protect human rights by ensuring

access to effective remedy through the judicial process.47

3. Obligation to fulfil

47. Besides being responsible for the activities of TNCs operating abroad, governments

have also a duty to support and cooperate in ensuring the fulfilment of the right to food in

poorer countries.48 General comment No. 12 suggests that developing States that do not

possess the necessary resources for the full realization of the right to food are obliged to

actively seek international assistance, and wealthier States have a responsibility to help

(para. 38). The Right to Food Guidelines request that assistance be provided by States in

situations of emergency or widespread famine.

C. Holding transnational corporations accountable

1. Interpretative efforts

48. International obligations with extraterritorial dimensions are enunciated in a number

of international treaties49 that emphasize the importance of international cooperation among

States to ensure the protection of human rights. At the same time, international human

rights instruments refer to how non-State actors have duties to uphold human rights

standards. For example, the Universal Declaration of Human Rights states in its preamble

— and binding provisions in universal and regional human rights documents also indicate

45 Ibrahim Kanalan, “Horizontal effect of human rights in the era of transnational constellations: on the

accountability of private actors for human rights violations”, p. 19.

46 General Assembly resolution 56/83. See also Smita Narula, “The right to food: holding global actors

accountable under international law”, Colombia Journal of Transnational Law, No. 44 (2006), pp.

752–753.

47 The Third Pillar case studies include Canada, France, Germany, the Netherlands, Switzerland, the

United Kingdom and the United States of America.

48 General comments No. 12, paras. 36 and 37, and No. 15, para. 32. See Ziegler et al., The Fight for the

Right to Food.

49 The Charter of the United Nations (arts. 55 and 56); the Universal Declaration of Human Rights

(arts. 22 and 28); the Covenant (arts. 2, para. 1, and 11, paras. 1 and 2); the Convention on the Rights

of the Child (arts. 4 and 24, para. 4); and the Convention on the Rights of Persons with Disabilities

(art. 32).

— duties for private actors, while the Guiding Principles on Business and Human Rights

(A/HRC/17/31), endorsed by the Human Rights Council in its resolution 17/4 in 2011,

elaborate on the responsibility of business enterprises to respect human rights.

49. Another consideration supporting the necessity of extraterritoriality is the principle

of non-discrimination. It is a fundamental part of human rights law, and the logical

extension of the universality principle. If States are able to treat individuals in other

countries differently from the way they may treat individuals in their own territory, this is

discriminatory practice and goes against the principles of universality of rights enjoyment.50

2. Judiciary

50. The application of extraterritorial obligations is supported indirectly by the

International Court of Justice, in its advisory opinion on the Legal Consequences of the

Construction of a Wall in the Occupied Palestinian Territory. The Court observed that:

“while the jurisdiction of States is primarily territorial, it may sometimes be exercised

outside the national territory”.51 At the regional level the American Convention on Human

Rights extends to persons “subject to [the] jurisdiction” of the State party, and the Inter-

American Commission on Human Rights held that in relation to the American Convention,

“jurisdiction [is] a notion linked to authority and effective control, and not merely to

territorial boundaries”. The European Court of Human Rights has also indicated that “as an

exception to the principle of territoriality, a Contracting State’s jurisdiction under article 1

may extend to acts of its authorities which produce effects outside its own territory”.52

51. There are a number of cases involving TNCs and right to food violations at the

domestic level; however, in many of these cases, claims are either based on tort or criminal

law rather than human rights legislation, or decisions focus on the involvement of the

Government in the violation of rights, and not the company. The case against Nigeria

submitted through the African Commission on Human Rights is an example thereof.53

Another example is the case brought to the Inter-American Commission on Human Rights

on behalf of indigenous Guarani people living in the Oriente region in Ecuador against the

oil exploitation activities by their own Government and Texaco.54

52. There are many relevant domestic court decisions in Brazil, India, Namibia, South

Africa and Uganda. Examples can be found also from Australia, Canada and the United

Kingdom of Great Britain and Northern Ireland in which TNCs were held responsible under

tort law for complicity in human rights violations abroad. In the United States of America,

under the Alien Tort Claims Act, TNCs can be held accountable for complicity in the

violation of human rights outside of the United States. However, in 2013 the United States

Supreme Court in Kiobel v. Royal Dutch Petroleum case created a most significant barrier

to accessing judicial remedies for human rights violations that occur in a host State.55

53. In the European Union, the notion of extraterritorial jurisdiction is not as

problematic when businesses are domiciled in the European Union. The situation in

Switzerland is similar.56 Barriers exist across all jurisdictions, despite differences in

legislation, the approaches of courts, human rights protections at the national level and

50 Skogly, “Right to adequate food”, pp. 341–342.

51 I.C.J. Reports 2004, p. 136, para. 109.

52 Ibid.

53 African Commission on Human and Peoples’ Rights, SERAC v. Nigeria, para. 65 ff. 54 See J.E. Viñuales, “The ‘dormant environment clause’: assessing the impact of multilateral

environmental agreements on foreign investment disputes?”, p. 4.

55 Skinner, McCorquodale and De Schutter, “The Third Pillar”, p. 5.

56 Ibid., p. 6.

legal traditions. These barriers have been overcome in only some instances and, in those

cases, usually as a result of innovative approaches adopted by lawyers, the patience of

victims and responses by perceptive judges.57

54. If TNC activities are criminally justiciable and reasonable compensation is

enforceable, the issue of extraterritoriality may not arise. However, in cases of indirect

violations of the right to food, for instance by way of voluntary displacement or not being

able to farm because of a lack of access to necessary resources such as water because of

privatization, or seeds because of a monopoly by TNCs, human rights adjudication

becomes vital. Consequently, such remedies should provide enforceable compensation and

restitution. The remedies currently available for individuals whose economic, social and

cultural rights are violated are somewhat limited. Considerable improvements in this regard

are essential for cases involving violations of the right to food to be protected from

violations committed by foreign and national actors.58

3. Private arbitrations and dispute mechanisms

55. In relation to IFIs, private dispute mechanisms have been developed, including the

establishment of an ombudsperson for international finance corporations, as have complaint

mechanisms, such as the World Bank’s International Centre for Settlement of Investment

Disputes (ICSID) and the contact point procedure under the OECD Guidelines for

Multinational Enterprises.59 Under these mechanisms ICSID States and private actors are

on an equal footing. The flip side is that corporations are in a position to sue governments.

56. Developing countries are increasingly subject to dispute procedures brought by

private companies. For example, high water prices and poor water quality following the

privatization of the water supply in the Bolivian town of Cochabamba, culminated in

protests against Aguas de Tunari, a subsidiary of the United States firm Bechtel.60 The

Government succumbed to public pressure and reversed the decision to privatize, which

prompted the company to bring the Government before ICSID. The case posed the

fundamental question of whether the property rights of the company could trump the rights

to food and to access water and sanitation. In the end, civil society pressure led to a

settlement and, as a result, Bolivian water laws were amended with the 2009 Constitution

guaranteeing the right to access to water.61

57. Other examples include a lawsuit brought by the Oceana Gold mining company

against El Salvador through ICSID for US$301 million for failure to grant a mining permit.

It was alleged that the project posed a risk to the country’s livelihood. Having failed to

change the domestic law to relax regulation, the company initiated arbitration measures to

pressure El Salvador into paying for lost exploration costs and future profits.62 These cases

demonstrate how intervention is necessary to prevent democratic rights from being

undermined by global norms.

57 Ibid., p. 5.

58 Skogly, “Right to adequate food”, p. 355.

59 Malcolm Langford et al. (eds.), Global Justice, State Duties: The Extraterritorial Scope of Economic,

Social, and Cultural Rights in International Law (Cambridge University Press, 2013), p. 7.

60 Aguas del Tunari S.A. v. Republic of Bolivia, ICSID Case No. ARB/02/3.

61 Andreas Fischer-Lescano and Kolja Moller (eds.), The struggle for transnational social rights: land

grabbing and the right to food (2014).

62 International Allies Against Mining in El Salvador, “Call for international support”. Available from

www.stopesmining.org/j25/index.php/campaigns/2014-international-month-of-action.

4. Permanent peoples’ tribunal

58. In recent years, the human rights violations perpetrated by private actors, including

those committed by TNCs, have been subject to several Permanent Peoples’ Tribunals. Of

particular relevance to the right to food are the tribunals on: Agrochemical Transnational

Corporations (2001), Neoliberal Policies and European Transnationals in Latin America

and the Caribbean (2008), the Role of Transnationals Corporations in Columbia (2006–

2008), and Global Corporations and Human Wrongs (2000).63 Permanent Peoples’

Tribunals are only beneficial in raising public awareness of human rights abuses that

otherwise cannot be heard. They offer no legal remedy, but are important politically.

5. Extraterritoriality in the United Nations treaty bodies and special procedures

59. United Nations treaty bodies and special procedures have addressed extraterritorial

human rights issues in their various reports, including for the universal periodic review and

general comments. According to a recent report from the International Network for

Economic, Social and Cultural Rights, in the last seven years the various mechanisms of

OHCHR have touched upon extraterritorial obligations some 26 times. In so doing, these

bodies have played an important role in developing and consolidating an understanding of

how to apply the concepts of jurisdiction to the actions and omissions of States.64 They

expressed their concerns and made recommendations on a number of issues addressing

extraterritorial obligations, especially on the human rights impact of the exploitation of

natural resources in third countries and the role of TNCs in large-scale development

projects with respect to forced land evictions, all of which impact directly on the right to

food.

60. General comments do not establish legal obligations, but elaborate on the practical

implications of those obligations. The treaty bodies, however, have legally binding powers.

In February 2013, the Committee of the Rights of the Child adopted general comment No.

16 (2013) on State obligations regarding the impact of the business sector on children’s

rights to elaborate on the practical implications of those obligations. The Committee also

noted that the existing instruments and guidance did not sufficiently address the particular

situation and needs of children.65 The treaty bodies have also contributed to the protection

of the rights of groups such as indigenous people and small-scale farmers, whose rights are

routinely disregarded by foreign States and private actors based in third countries.

Moreover, in recent years a number special procedure mandate holders have sent various

communications to States concerning the application of extraterritorial obligations,

especially in cases involving allegations of corporate abuse of human rights in host States.

6. Codes of conducts and voluntary guidelines

61. Recent years have witnessed various attempts to regulate the impact of business

activities on human rights outside of the territorial boundaries of the home State. Notably

the Guiding Principles on Business and Human Rights (2011) underlined that States

“should set out clearly the expectation that all business enterprises domiciled in their

territory and/or jurisdiction respect human rights throughout their operations” and clarified

the responsibility of TNCs and other business enterprises to respect human rights. Similarly

The United Nations Global Compact (2000) urges TNCs to respect workers’ rights and

63 See www.tni.org/archives/peoplestribunal-lima.

64 Global Economy, Global Rights: A practitioner’s guide for interpreting human rights obligations in

the global economy (2014), p. 9. 65 See Committee on the Rights of the Child, concluding observations on Australia, CRC/C/AUS/CO/4,

paras. 27 and 28, and Turkey, CRC/C/TUR/CO/2-3, paras. 22 and 23.

human rights; and the OECD Guidelines call on enterprises to respect human rights. In

2011, a group of experts in international law and human rights adopted the Maastricht

Principles on Extraterritorial Obligations of States in the Area of Economic, Social and

Cultural Rights, which provide that States are responsible for violations of economic, social

and cultural rights by non-State actors, including corporations in cases where these non-

State actors act under the instructions or direct control of the State, or are empowered by

the State to exercise elements of governmental authority.

62. The Guiding Principles are considered the most authoritative statement of the human

rights responsibilities of corporations and corresponding State duties adopted at the United

Nations level. The Guiding Principles offer a noncommittal voice on extraterritoriality but

are rapidly developing and cited in established international standards, such as the revised

version of the 2011 OECD Guidelines for Multinational Enterprises and the updated

International Finance Corporation Performance Standards; the European Union has also

cited the Guiding Principles in its latest Corporate Social Responsibility strategy, and many

national governments are recognizing the need to regulate in the area of business and

human rights. These rules that place obligations on corporations can develop out of the

complex interplay between various States and non-State systems and this multidimensional

aspects give them legitimacy.

63. The OECD guidelines’ implementation mechanism, the “National Contact Points”,

emphasize due diligence responsibility for human rights. There have been more than 100

cases to date, in which different human rights organizations had approached the National

Contact Points alleging violations of the guidelines by corporations and thus violations of

human rights law.66 The Maastricht Principles are also an example of progressive

development efforts of international law. A range of academic experts and non-

governmental organizations endorsed the Maastricht Principles in September 2011, and

they have been acknowledged in paragraph 61 of the Guiding Principles on Extreme

Poverty and Human Rights, which were adopted by consensus by the Human Rights

Council (resolution 21/11) in September 2012.

64. All of these mechanisms have the common of preventing and addressing human

rights abuse by business enterprises but fail to provide sufficient monitoring mechanisms.

The voluntary nature of soft law instruments is generally not sufficient to protect human

rights and thus fails to close the existing “accountability gap” of extraterritorial

responsibilities.67 However, one should not be too quick to rule out categorically the legal

applicability of such declarations just because they are of a voluntary nature. Law is not

limited to what States set forth. Legal norms can also be formed in society. To treat the

concept of law as being entirely dependent on the State is to overlook the unique nature of

social norms.68

65. The legally binding nature of voluntary rules may also emerge with the help of

national law. Voluntary standards can often be enforced in accordance with competition or

consumer laws, where they include relevant representations to the consumer. Thus, a

corporation’s non-adherence to its own codes can be enforced before courts in the country

of the corporation’s headquarters.69

66. Transnational campaigns by civil society are also important in developing good

practice. For example, Oxfam’s “Behind the Brands” campaign called upon TNCs to stop

land grabbing. As a result PepsiCo, Coca-Cola and Nestle responded by committing to a

66 Details available from http://oecdwatch.org/cases.

67 Smita Narula, “The Right to Food”, pp. 752–753.

68 Langford et al., Global Justice, State Duties, p. 61.

69 Ibid., p. 62.

“zero tolerance” policy within their supply chains in relation to land grabbing and

protecting the land rights of rural and indigenous communities.70 These are important

victories, yet monitoring and proper enforcement by the companies is essential to ensure

that these committments are upheld.

67. The question of accountability in relation to TNCs and IFIs is still a grey area in

international law. However, there has been significant progress on the part of some States,

human rights organizations, and even some TNCs in developing guidelines to ensure the

protection of human rights and the environment. Providing a uniformly enforced regulatory

framework may actually encourage foreign investment in developing countries by levelling

the business playing field for ethical corporations.

Some companies have begun to

recognize the merits of operating under enforceable standards that apply to all their

competitors, rather than voluntary standards that only really influence companies with

prominent public profiles.71

68. Following the unanimous adoption of the Guiding Principles on Business and

Human Rights in June 2011, the Human Rights Council subsequently called on all Member

States in June 2014 to develop national action plans to further the implementation of the

Guiding Principles within their respective national contexts. This development followed

similar requests to Member States made by the European Union in 2011 and 2012 and

Council of Europe in 2014. However, as of 1 December 2014, only six States have

developed and published NAPs on business and human rights: Denmark, Italy, the

Netherlands, Spain and the United Kingdom.72 At the same time, a number of other

governments have begun the process of developing national action plans on business and

human rights or have publicly announced an intention to do so.73 The Special Rapporteur

congratulates those States which have developed plans and encourages others to do so as a

matter of priority. In order to encourage more States, business enterprises and civil society

actors to engage in the process, the Working Group on Business and Human Rights on

1 December launched its guidance on national action plans.74

69. In June 2014, the Human Rights Council decided to establish an open-ended

intergovernmental working group with a mandate “to elaborate an international legally

binding instrument to regulate, in international human rights law, the activities of

transnational corporations and other business enterprises” (resolution 26/9). It was decided

that the open-ended intergovernmental working group would hold its first session in 2015

“to collect inputs … on possible principles, scope and elements of such an international

instrument” and that the Chairperson-Rapporteur of the working group should prepare

elements for the draft instrument for substantive negotiations at the commencement of the

working group’s third session.

70. The Special Rapporteur’s predecessor, Olivier De Schutter, in a statement of March

2014 underlined that international human rights law has already gone a long way towards

recognizing duties of States to regulate the activities of corporations, and that the

70 Details available from www.oxfamamerica.org/explore/stories/these-10-companies-make-a-lot-of-

the-food-we-buy-heres-how-we-made-them-better/.

71 Langford et al., Global Justice, State Duties, p. 7.

72 See overview of national action plans maintained by the Working Group on Business and Human

Rights, available from www.ohchr.org/EN/Issues/Business/Pages/NationalActionPlans.aspx; and

ICAR and ECCJ, “Assessments of Existing National Action Plans on Business and Human Rights

(2014).

73 Including Azerbaijan, Belgium, Chile, Colombia, Finland, Germany, Greece, Ireland, Italy, Lithuania,

Mexico, Mauritius, Morocco, Mozambique, Norway, Portugal, Slovenia, Switzerland, the United

Republic of Tanzania and the United States.

74 See www.ohchr.org/EN/Issues/Business/Pages/NationalActionPlans.aspx.

negotiation of a new legally binding instrument is one among many alternative ways

through which the fight against impunity for human rights violations could be further

strengthened. He also suggested that States cooperate with one another in order to ensure

that victims are provided with effective remedies in transnational cases. The Special

Rapporteur supports the recommendations made by her predecessor and urges States to

consider bringing his proposals to the Human Rights Council for further clarification on the

States’ obligation in relation to non-regulatory means; to identify best practices regarding

cooperation between States; and for the adoption of a resolution to draw attention to the

Maastricht Principles. The Special Rapporteur recommends that the Human Rights Council

establish a mechanism to explore the feasibility of seeking an advisory opinion from the

International Court of Justice to determine the legal obligations associated with the

extraterritorial implementation of the right to food. The advisory opinion of the Court

would itself have no legally binding effect, however, as the highest international court, it

has an interpretative authority with respect to particular legal questions. Legal clarification

would increase the influence of voluntary regulatory efforts having the goal of reaching

legally binding agreements.

VI. Conclusion and recommendations

71. The question of justiciability of economic, social and cultural rights has long

been debated in the international sphere. States have been reluctant to allow for

individual complaint procedures before the Covenant. All human rights are

indivisible, and should be protected as such. Economic, social and cultural rights are

more than mere aspirations, they are necessary conditions for the stability of the

democratic order, and economic power must be subject to democratic control. The

newly ratified Optional Protocol is an effort to equalize and operationalize those two

categories of rights and empower the justiciability of the economic, social and cultural

rights. The Special Rapporteur intends to work closely with civil society and States to

promote ratification and use of the Optional Protocol and bring violations to the

attention of the Committee on Economic, Social and Cultural Rights as a practical

means of eradicating hunger and promoting the right to adequate food. The Optional

Protocol has the potential to contextualize and operationalize the right to food at

international and national levels. However, we should not be complacent as much

remains to be done beyond the scope of the Optional Protocol. Wealthy States not only

have moral obligations to address poverty and hunger beyond their borders, they are

also legally obliged to do so under international law. International cooperation and

development assistance must become the legal norm in an increasingly global world.

Despite established duties in a number of human rights documents and voluntary

principles, significant barriers and loopholes exist in relation to the extraterritorial

application of States obligations in human rights law. A coordinated international

response is essential in order to maintain international peace and security and to

ensure protection of the most vulnerable in times of economic globalization.

72. The Special Rapporteur recommends that States:

(a) For those that have not already done so, ratify the Optional Protocol to

the International Covenant on Economic, Social and Cultural Rights as a matter of

priority;

(b) Ensure recognition of the justiciability of the right to food by judicial

and quasi-judicial bodies at the national, regional and international levels;

(c) Ensure renewed political commitment to the progressive realization of

the right to adequate food by adopting policies, constitutional principles and

framework laws that provides an appropriate institutional structure; and sectoral

legislation addressing various sectors that impact significantly on levels of food

security in this regard;

(d) Provide mechanisms that offer adequate, effective and timely remedies

in cases of violations of the right to food, in particular to groups such as communities

living in remote rural areas, communities living in situations of extreme poverty,

persons with disabilities and indigenous communities, either through collective or

public interest remedies;

(e) Ensure the empowerment of women by guaranteeing their basic right to

access adequate food and take steps to implement gender-mainstreaming in relation to

domestic policies on agricultural, property and inheritance rights;

(f) Ensure that everyone, without discrimination, is afforded access to social

protection as a means of offering economic, social, and cultural rights;

(g) Cooperate with civil society organizations to organize training

programmes for rights holders and duty bearers in order to operationalize the

justiciability of the right to food;

(h) Develop awareness-raising campaigns to ensure that rights holders have

access to information pertaining to the right to food and the obligations pertaining

thereto;

(i) Ensure policy coherence when implementing national food strategies,

paying particular attention to the correlation between trade and investment policies,

and economic development plans;

(j) Develop the necessary legal structure in order to protect resources

directly related to the right to access adequate and nutritious food, such as water

sources, access to land and seed production;

(k) Enable further clarification on States’ extraterritorial obligations in

relation to non-regulatory means; identify best practices regarding cooperation

between States; and adopt within the Human Rights Council a resolution to draw

attention to the Maastricht Principles;

(l) Consider requesting an advisory opinion from the International Court of

Justice to determine the legal obligations relating to the extraterritorial

implementation of the right to food.