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Wednesday , 19th December 2018

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Tejman Shrestha*

TRANSLATING JUSTICIABILITY THEORY INTO PRACTICE IN NEPAL

1. Background
The right to food has been accepted as a basic human right. However, the large global population has not been able to enjoy this basic right. The number of undernourished persons in the world in 2011-2013 was predicted to be 842 million constituting 12 percent of the world population.[1] 16 percent of total population (nearly 5 million) of Nepal in that period remained undernourished.[2] Millions of Nepali people, thus, have remained outside the ring regarding the enjoyment of basic human right to food.

2014 marks 10 years since the adoption of the “FAO Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security” (FAO Voluntary Guidelines) by consensus in 2004.[3] On the one hand, Nepal has recognized the right to food as fundamental rights in the Interim Constitution of Nepal, 2007[4] and the debate is very intense in its faith in the upcoming Constitution; and on the other, around 25.16 percent population of the country live below poverty level.[5] Still more than 60 percent of children in Humla and Bajhang are malnourished.[6] So, without addressing the right to food of those poverty stricken people, graduation of Nepal from least developed to developing country by 2022[7] does not seem attainable. In such context, present article has discussed on definitional and dimensional aspects of the right to food, its normative framework in international law and how it can be judicially protected in Nepali context.

2. Defining Right to Food
Right to food was recognized in Universal Declaration of Human Rights (UDHR), 1948. After nearly two decades, it was enshrined in the International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966. Former UN Special Rapporteur on Right to Food (SRRF) has developed comprehensive definition of the right to food as:
[T]o have regular, permanent and unrestricted access, either directly or by means of financial purchases, to quantitatively and qualitatively adequate and sufficient food corresponding to the cultural traditions of the people to which the consumer belongs, and which ensures a physical and mental, individual and collective, fulfilling and dignified life free of fear.[8]
For enjoying the right to food, one has to be able to live a dignified life that is free of any sort of fears.[9] The Committee on Economic, Social and Cultural Rights (ESCR Committee) elaborates that the right to food includes three main components-availability, accessibility, and adequacy of food for individual all the time in sustainable manner consistent with the cultural acceptability of consumer.[10] Sustainability is equally necessary as that of availability, accessibility and adequacy[11] for realization of this right.

In order to ensure food availability, it first requires that food security be achieved at national level. The Universal Declaration on the Eradication of Hunger and Malnutrition Conference declares as “Every man, woman and child has the inalienable right to be free from hunger and malnutrition in order to develop fully and maintain their physical and mental faculties.”[12] Menezes defines food security as “the guarantee that everyone has permanent access to good quality food in sufficient quantities, based on healthy eating habits and without adversely affecting access to neither other essential needs nor the future food system, which should be implemented on sustainable bases.”[13] Food security means there should not be scarcity of food and people should not lose lives because of this situation.

Food accessibility needs to be addressed through policies aimed at the areas and populations that are still vulnerable to food insecurity. Adequacy requires that appropriate attention be paid to the nutritional dimensions of the right to food. And the food systems must be sustainable. Satisfying current needs should not be at the expense of the country’s ability to meet future needs.

Human rights related to food have three dimensions- food sovereignty, food security and right to food[14]. Food sovereignty is political concept; food security is a technical aspect and right to food is considered as a legal concept[15]. ‘Food sovereignty’, a rather young terminology, which “is a political concept”[16], originally coined by members of Via Campesina in 1996 to refer to a policy framework advocated by a number of farmers, indigenous peoples and others, namely the claimed “right of peoples to define their own food, agriculture, livestock and fisheries systems”[17], in contrast to having food largely subject to international market forces.

Food sovereignty entails the sustainable care and use of natural resources.[18] It reaffirms that “food is first and foremost a source of nutrition and only secondarily an item of trade.”[19] Thus, food sovereignty primarily perceives food as the sovereign good for survival only then as the commodity.

To sum up, right to food is the right of every person to have continuous access to the resource necessary to produce, earn or purchase enough food ensuring good health and well-being and living a dignified life. For that the food must be available, accessible, adequate and culturally acceptable and it should be in sustainable manner.

Obligations to Respect, Protect and Fulfill
The obligation to respect the right to food is essentially an obligation to refrain from action. It implies the obligation of States to refrain from taking measures that prevent individuals from accessing food. 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.”[20] Violations of the obligation to respect would occur by the arbitrariness of the government such as eviction of the people who are primarily dependent on their land from it.

The obligation to protect the right to food requires that States ensure enterprises and private individuals do not deprive individuals of their right to access adequate food[21]. Maastricht Guidelines provides that State failure to control the behaviour of non-state actors results into the deprivation of socio-economic rights.[22]This obligation requires that States implement a legislative and institutional frameworks and legal systems which are appropriate for the protection of the right to food.

Finally, the obligation to fulfill is the requirement that most closely approximates the obligation provided in the ICESCR.[23] The State party has to take steps up to the maximum of their available resources, with a view to progressively ensuring the full realization of the right to food for everyone through all appropriate means, including, in particular the adoption of legislative measures.

Beyond Progressive Realization

Recognition of right to food obliges the States to take steps, to the maximum of its available resources, to progressively realize the full enjoyment of right of every person to adequate food. It is not possible to meet the claim at once as the State may not have sufficient resources. The State keeps on fulfilling according to the available resources[24]. As the ESCR Committee asserts that State has an obligation “to move as expeditiously and effectively as possible towards that goal”[25] and that the steps taken by the State should be “deliberate, concrete and targeted as clearly as possible”[26] for fulfilling the obligations recognized in the Covenant, States are required to take deliberate and concrete steps utilizing its full capacity. Even when the available resources are demonstrably inadequate, State has to strive to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances.

States require ensuring the fundamental right of everyone to be free from hunger. According to article 11 (2) of the ICESCR, the State parties recognize to take more immediate and urgent steps to ensure the fundamental right to freedom from hunger and malnutrition.[27] Thus, the obligation to ensure right to be free from hunger takes immediate effect and is not subject to the standard of progressive realization all the time.

When the States do not have adequate resources, thier effort must be made as best as they can with certain time limit and set benchmarks. Besides, resource constraints, right to food is a negative right; for that participation in decision making and non-discrimination for allocation of State resources are equally necessary. Thus, right to food is not necessarily the matter of progressive realization all the time.

3. Normative Framework of Right to Food
Rights without legal remedies do not ensure environment that is conducive for its exercise. The formulation of legal instruments in national and international level provides a legal framework for its fulfillment providing State obligations and mechanisms for accountability.

International Instruments
Despite the fact that right to food has been accepted since time immemorial in different ways, this right was explicitly covered in international human rights law only through the UDHR, 1948. The UDHR proclaims:

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food [ … ] in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.[28]

Thus, the UDHR has ensured the right of the individuals to live in a dignified way both during normal situation and in situation beyond their control. The ICESCR developed these concepts more comprehensively stressing the right of every individual to adequate food specifying the fundamental right of everyone to be free from hunger almost two decades later of formal recognition of right to food in UDHR.[29] Right to food incorporates multiple layers of duties of State like social security, good governance, and employment opportunity. The ICESCR recognizes the normative content of the right to adequate food as part of an adequate standard of living and as fundamental right to freedom from hunger. With Optional Protocol to the ICESCR entering into force[30]the ESCR Committee will have the capacity to exercise a central role in protecting the right to food at international level.

Underlying the concerns that in situations of poverty, women have the least access to food and resources, the Convention on Elimination of all Forms of Discrimination against Women (CEDAW), 1979 establishes the right of women to adequate nutrition during pregnancy and lactation.[31] Similarly, the International Convention on the Rights of the Child (CRC), 1989 recognizes the right of every child to standard of living adequate for the child’s physical, mental, spiritual, moral and social development.[32] Thus, State party has the responsibility of providing nutritious food and care for wellbeing of women and children.

To save the lives of refugees from the lack of food States are required to provide same treatment to lawful refugees in their territory as is accorded to their own nationals, with regard to rationing.[33] Thus, rights of the refugees to food have been respected and protected.

International Humanitarian Law (IHL) ensures right to food during the armed conflict. IHL prohibits the “starvation of civilians as a means of combat”[34] by means of destruction of objects indispensable for the civilian population, such as foodstuffs, means of production and distribution system. State parties to an armed conflict must allow humanitarian and impartial relief operations such as providing food to civilian population.[35] Thus, IHL has provided that people should be free from hunger and starvation.

Besides conventions, there are many declarations and guidelines that also have contributed in recognizing right to food. Universal Declaration on the Eradication of Hunger and Malnutrition, 1974[36] explicitly recognizes State responsibility to work together for higher production and more equitable and efficient distribution of food to ensure the right of every one to be free from hunger and malnutrition.[37] It also has urged developed countries to take effective and urgent action to provide with sustainable technical and financial assistance.[38] The Declaration, though having no binding obligation creates the common responsibility of entire international community to ensure availability of adequate food stuffs.

The World Declaration on Nutrition, 1992 recognizes access to nutritionally adequate and safe food as a right of each individual[39]. Instruments that most particularly contributed to understanding and interpreting the meaning of right to food include the 1996 Rome Declaration on World Food Security[40] and its Plan of Action and the Declaration of the World Food Summit Five-Years-Later in 2002.

FAO Food Guidelines[41] provide practical guidance to States and recommend actions to be undertaken in order to build an enabling environment for people to feed themselves in dignity and to establish appropriate safety nets for those who are unable to do so. It calls all FAO member States to actively support the progressive realization of the right to food at the national level by framing policy and legislation in line with the international norms of right to food.

Nepali Policy in Recognizing Right to Food
Better realization of right to food is possible when effective laws are adopted to ensure right to food as claim right. There may be specific and separate legislations or some sector-wise laws to ensure the different aspects of the right to food. Nepal does not have specific legislation to progressively realize the right to food. With the promulgation of Interim Constitution of Nepal, 2007, right to food has become the burgeoning issue in the human rights discourse.

The Constitution has guaranteed Nepali citizens the right to live a dignified life as a fundamental right.[42] The Constitution has not only provided right to life but also to live a life with dignity. In Munn v. Illinois, American Court has interpreted the term ‘life’ something more than mere animal existence.[43] In Francis Coralie v. Union Territory of Delhi as well, the Indian judiciary also has interpreted as “the right to life includes the right to live with human dignity.”[44] Thus, living a life without dignity may be equal to mere animal existence.

The Constitution, for the first time in Nepal, has guaranteed right to food sovereignty.[45] The Supreme Court of Nepal has also acknowledged right to food as a part of fundamental right guaranteed as right to food sovereignty in the Constitution.[46] The Constitution has also enshrined the right to employment and social security[47] which create enabling environment for the enjoyment of the right to adequate food. However, the Constitution has made these rights subject to the legislations. Despite this, the long journey towards recognizing right to food as fundamental rights has been materialized in Nepal with the enactment of the Interim Constitution of Nepal, 2007.

In operation, Nepal has adopted policy and programme for translating right to food. In its policy and plan of the current fiscal year 2014/15, Nepal has adopted from policies and programs numbers 15 to 24 to ensure right to food of the marginalized groups.[48] Thus, Nepal has not only recognized right to food constitutionally, but also has initiated to implement it into annual programme.

C. Emerging Jurisprudence on Justiciability of Right to Food
The term ‘justiciability’ has been used as ability to claim before an independent and impartial body when a violation has occurred or is likely to occur. Judicial claim for violation of right to food has still been in question to some extent in comparison to the civil and political rights. According to the Vienna Declaration and Programme of Action (VDPA), 1993, 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.[49] Thus, there requires the equal treatment of all human rights despite the differences of the States in political ideology or on other grounds.

Traditionally, justiciability of socio-economic rights has been neglected in legal course. However, with the emergence of jurisprudence of justiciability of ESC rights, the argument that the difference between the civil and political rights and ESC rights is of degree not of nature has become stronger. Courtis argues that “ESC rights are in toto not suitable subjects for judicial enforcement is a misguided idea”[50]. Thus, jurists and scholars have found grounds for justiciability of right to food along with other socio-economic rights.

The ICCPR requires State parties to “develop the possibilities of judicial remedy”[51], but Langford points out that there is no equivalent provision in the ICESCR.[52] The lacking of this provision in the ICESCR “seems to have encouraged many governments and commentators to assume that traditional legal remedies such as court actions are either inappropriate or at best impracticable for the vindications of ESR.”[53] However, the Human Rights Council (HRC) is close to addressing this historical imbalance.[54] Thus, this historical imbalance of lacking judicial remedy on violation of ESC rights has been bridged by the introduction of Human Rights Council. Moreover, with the coming of Optional Protocol to the ICESCR, the question of justiciability of socio-economic rights, including the right to food does not have strong legal basis.

D. Judicial Enforcement of Right to Food in Nepal
Whether there is explicit recognition of right to food in the national legislation or not, the courts or regional bodies or the UN treaty bodies can have broader interpretation to the right to food. Such case laws help in developing the specific legislation.

Nepali judiciary has developed substantial jurisprudence of right to food though not so many cases related to right to food has been adjudicated. Based on the Nepali experience, the right to food in Nepal is relatively new issue. However, this right has been applicable in both judicial and quasi-judicial bodies. Victims of violations of the right to food have been granted access to justice in Nepal with the promulgation of Interim Constitution of Nepal, 2007 and the substantive interpretation by the Supreme Court of Nepal. Hence, it is no longer acceptable to aver that justiciability is not possible in cases of violations of the right to food.

Thus, in spite of being new right, the right to food is a justiciable right in Nepal. In this article, only three leading cases which have explicitly spelled the right to food have been discussed.

The case Adv. Madhav K Basnet v. Rt. Hon. PM Girija P Koirala and others[55] has become the first case brought before the Supreme Court on right to food. The writ petitioner raised the issue of extreme hunger and food deficit in Karnali zone of Nepal and demanded an order be issued to the government of Nepal to supply adequate foodstuff.

The Court repealed the case on the basis of the government initiative to supply food. By this case, though the Court has not upheld the right to food as fundamental right, it has been established that if government has resource and means, government is responsible to ensure regular supply of food in food deficit area. It has at least accepted ensuring the progressive realization of food to the people as the obligation of the State. Moreover, the Court entertained the case and proved that right to food is justiciable.

In another case, Adv. Prakash Mani Sharma v. Office of Prime Minister and Council of Ministers and Others[56], the writ petitioner sought justice on the part of people who live in food deficient regions. The writ was basically related with the food availability, storage and distribution. In that case, the Court has recognized the right to food sovereignty guaranteed by the Interim Constitution. Thus, for the first time in judicial history of Nepal, the Court explicitly recognized right to food and obligation of the State which was not materialized in the first case of Adv. Madhav Basnet.

The Court rendered in its final verdict that it is not only the duty of the State just to provide security to human lives, but also let not to occur hunger and starvation in its territory to save its people. The State has to adopt any feasible steps till its last resort to feed its people.[57] The, Supreme Court has made quite broader interpretation of right to food.

In Bhajuuddin Miya v. Office of the Prime Minister, Council of Ministers and Others case[58], the local people, including the applicant residing in the surrounding of Koshi Tappu Wildlife Reserve whose crops were destroyed by the protected animals had filed writ petition seeking compensation of sugarcane harvest destroyed by the wild animals of the reserve.

Responding to the writ petition, the Supreme Court ordered the authorities to ensure food sovereignty of people when their food is destroyed by the wild animals. The Court directed the government to set up a permanent mechanism in this regard. The Court further observed that the State has to create the suitable economic environment by adopting adequate legislature, policy and other provisions not to deprive the citizens from food sovereignty and to enjoy this fundamental right. The Court stressed that the State has to make the provision of required compensation to protect the fundamental rights of the people to be free from hunger, i.e. right to food and rights related to profession and employment.

Thus, from the journey of Constitution of 1990 to 2007, there has been a substantive change in recognition of right to food judicially. The right to food has not only been elevated as a fundamental right, but also given new dimension of right to food sovereignty.

4. Conclusion
Right to food could not get equal footing in the development of concept of rights despite concepts on right to food were developed in the ICESCR comprehensively. With the adoption of VDPA, 1993 it has been constantly reminded that human rights are universal, indivisible and interdependent and interrelated. This has urged the international community to treat all human rights on the same footing. So is the case with the right to food as well.

Efforts of developing the contents of human rights to food are relatively recent. So, it can be assumed that there will be further efforts in having clarity on the content of right to food through the scholarly debate and interpretation of the courts in the coming years. There are certain State obligations to be realized immediately such as non-discrimination and life-saving during the hard times such as natural calamities and other crisis situations.

Though the right to food in Nepal is relatively new issue; it has been accepted as a fundamental right. When right to food was not clearly spelled out in the Constitution of 1990, Nepali judiciary did not recognize it as fundamental right though it made it admissible in the Court which made the litigation weaker. With the constitutional recognition of right to food, the Supreme Court of Nepal has made substantive interpretation of this right. Thus, right to food has been established as a justiciable right in Nepal.

* This article is based on the writer’s previous unpublished work Justiciability of Right to Food with Reference to Nepal for the completion of LLM in Constitutional Law and International Law, Nepal Law Campus, Faculty of Law, Tribhuvan University (TU), Nepal. Practicing Lawyer and university teacher of Law/English, Mr Shrestha holds second LLM in International Human Rights Law from University of Essex, UK and MA in English Literature from TU, Nepal. Advocate Shrestha has worked as Human Rights Officer at National Human Rights Commission, Nepal; Legal Consultant to different human rights organizations; and as Research Assistant to UN Special Rapporteur.
1. FAO accessed on August 30, 2014
2. ibid
3. FAO accessed on Aug 30, 2014. It is called Right to Food Guidelines in short.
4. article 18 (3)
5. National Planning Commission Secretariat, Central Bureau of Statistics, Poverty in Nepal: Nepal Living Standard Survey (2011), 13
6. UNDP, Nepal Human Development Report 2014, 22
7. National Planning Commission, Nepal accessed on September 3, 2014
8. Report by the Special Rapporteur on the right to food, Mr. Jean Ziegler, submitted in accordance with Commission on Human Rights resolution 2000/10; UN Doc. E/CN.4/2001/53, para 14; See also UN Doc and A/56/210. Jean Ziegler, Christophe Golay, Claire Mahon and Sally-Anne Way. The Fight for the Right to Food: Lesson Learnt (International Relations and Development Series, (Palgrave, 2011) p 15.
9. See ‘The Four Freedoms’ speech by F.D. Roosevelt, delivered on 6 January 1941 to the United States Congress.
10. The Committee on Economic, Social and Cultural Rights in its General Comment No. 12 para 8 to 13
11. Olivier De Schutter. Concluding Observations and Conclusions of the Mission to the People’s Republic of China of Special Rapporteur on Right to Food, 2010 accessed on Dec. 10, 2011
12. Adopted on 16 November 1974 by the World Food Conference convened under General Assembly resolution 3180 (XXVIII) of 17 December 1973; and endorsed by General Assembly resolution 3348 (XXIX) of 17 December 1974 accessed on September 12, 2014
13. Franscisco Menezes,‘Food Sovereignty: A vital requirement for food security in the context of globalization’ (2001) Development 44 (4) 30
14. Constituent Assembly of Nepal, Preliminary Report and Concept Notes of the Constituent Assembly, Committee on Fundamental Rights and Directive Principles of the State (2010) 292
15. ibid
16. ibid
17. Via Campesina, November 11-17, 1996 in Rome, Italy accessed on November 11 , 2011
18. ibid
19. ibid
20. UN Economic and Social Council, The right to food. Report by the Special Rapporteur for the right to food, Jean Ziegler (March 16, 2006) < http://www.righttofood.org/new/PDF/ECN4200644.pdf> last accessed on February 12, 2011
21. ESCR Committee, General Comment No. 12, paragraphs 15, 27
22. Maastricht Guidelines on Violations of Economic, Social, and Cultural Rights, para 18.
23. article 2 (1)
24. Arun Ray, National Human Rights Commission of India Vol. I. ( Khama Publishers. 2004) 50-51
25. General Comment No 3 para 9, The nature of States parties, obligations (Fifth session, 1999), UN Doc. E/1991/23/annex III at 86 (1991)
26. ibid, paras 2
27. ESCR Committee General Comment No. 12 para 1
28. article 25(1)
29. article 11
30. Entered into force from May 5, 2013, accessed on September 1, 2014
31. article 12
32. article 27(1)
33. The International Convention on Protection of Refugees, 1951, article 20; and Related Protocol, 1967
34. The Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), article14
35. IV Geneva Convention on the Protection of Civilian Population in Times of War, 1949 Art 55 and Additional Protocol I of the Geneva Conventions; Articles 70 and 71
36. See footnote 14
37. ibid
38. ibid, Clause 7
39. FAO http://www.fao.org/docrep/U9920t/u9920t0a.htm accessed onSeptember 10, 2014
40. Rome Declaration on World Food Security, Nov 13-17, 1996 accessed on September 10, 2014
41. FAO accessed on September 8, 2014
42. The Interim Constitution of Nepal, 2007, article 12 (1)
43. Mahendra P. Singh. VN Shukla’s Constitution of India. Delhi: Eastern Book Company. 2010, p. 192
44. ibid
45. article 18 (iii)
46. Pro Public v. Government of Nepal, Writ No. 065-WO-149, Supreme Court of Nepal
47. article 18
48. Policy and Programme of the Government of Nepal, 2014/15, Prog no 15-24 < http://www.mof.gov.np/uploads/document/file/Niti%20tatha%20Karyekaram%20Nepali_20140629101522_20140724070007.pdf> accessed on September 12, 2014
49. Vienna Declaration and Programme of Action , Adopted by the World Conference on Human Rights in Vienna on June 25, 1993 accessed on September 4, 2014
50. Christian Courtis, ‘Justiciability of Right to Food’ (2007) 11, Max Planck United Nations Year Book of Law, 317-337
51. article 2(3)(b)
52. Malcolm Langford, ‘The Justiciability of Social Rights: From Practice to Theory’ Social Rights Jurisprudence: Emerging Trends in International and Comparative Law. Malcolm Langford (Ed) (CUP 2008)
53. Henry J. Steiner, Philip Alston and Ryan Goodman, International Human Rights in Context : Law, Politics, Morals; Text and Materials (OUP, 2007 3 edn) 313
Langford (2008) 7
54. ibid
55. Adv. Madhab Basnet v Rt. Honorable PM Girija Prasad Koirala, Writ No 3341 of 2055, Decision Date 2055/06/27 BS, Supreme Court Judgment on Constitutional Issues , 2047-2057 Part I, Narendra Prasad Pathak and Narendra Prasad Khanal (Ed) (Pairabi Books 2058 BS) pp 516-18
56. Writ No — WO – 0388, Nepal Kanoon Patrika Vol 51, 2066 Asoj, Issue 6, p. 961-978
57. Ne Ka Pa, 2068 Baishakh, Volume 53, Issue 1, Decision No 8540, pp 97-112
58. Writ No — WO – 0388. Nepal Kanoon Patrika Vol 51, 2066 Asoj, Issue 6, p. 961-978

This article first appeared in December 2014 issue of INFORMAL and is available at the link below.
http://www.insec.org.np/pics/publication/1423202404.pdf

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