The right to food for all: a right-based approach to hunger and social inequality.
I. INTRODUCTION A. Poverty Amidst Plenty II. SOCIAL INEQUALITY AND HUNGER A. Horizontal Stratification of Society: Caste B. Vertical Stratification of Society: Gender III. THE RIGHT TO FOOD A. Development of the Right to Food B. Legal Content of the Right to Food 1. Freedom from Hunger 2. The Meaning of Adequate Food 3. The Obligations of States a. Obligation to Respect b. Obligation to Protect c. Obligation to Fulfill 4. Implementation of the Right to Food and the Duty of Non-discrimination C. Progressive Realization D. Relationship Between the Right to Food and Other Human Rights IV. THE PRINCIPLE OF EQUALITY IN INTERNATIONAL HUMAN RIGHTS LAW A. Different Conceptions of Equality in Human Rights B. Traditional Conceptions of Equality 1. Formal Equality 2. Identical Treatment Combined with Special Treatment C. Broader Conception of Equality 1. Equality as Participation D. Participation in Amartya Sen's Development as Freedom 1. Participation of Women V. EQUALITY AND THE RIGHT TO FOOD A. Traditional Conceptions of Equality in the Right To Food 1. ICESCR 2. General Comment No. 12 3. The Right To Food Case in the Supreme Court in India B. Broader Conception of Equality in the Right To Food VI. SEX DISCRIMINATION AND THE RIGHT TO FOOD A. International Human Rights Law on Women and the Right to Food 1. Traditional Conception of Equality 2. Broader Conception of Equality VII. CASTE DISCRIMINATION AND THE RIGHT TO FOOD A. International Human Rights Law on Caste Discrimination and the Right to Food VIII. THE RIGHT TO DEVELOPMENT AND THE RIGHT TO FOOD A. The Right to Development B. Linkages Between the Right to Food and the Right to Development 1. Participation 2. Equality of Opportunity C. The Right to Development, Sen's Development as Freedom and the Right to Food IX. CONCLUSION
A. Poverty Amidst Plenty
Despite the fact that the world today has produced enough food for every person to lead productive and healthy lives, starvation and malnutrition are still life threatening issues facing many people. (1) Traditionally we battled against hunger by the use of technology and science to increase agricultural production, by food aid to the people who suffer from famine and starvation, and by birth control as a long term reduction of poverty and hunger. In international human rights law, the recognition of the right to food as a distinguished social, economic and cultural right is an additional effort to achieve food security through the use of a right-based approach. (2) Accountability and obligations by states replace political wills and preferences. Non-discrimination and equality are central to the right-based approach.
Unfortunately, the recognition of the right to food by the international community does not seem to bring forth very encouraging signs of moving towards the goal of food security. Internationally, ten years after the World Food Summit 1996 in which the right to food was expressly recognized, the report of the Food and Agricultural Organization stated that the number of undernourished population remains exceedingly high. Since 1990-92, the baseline period for the World Food Summit Target, the number of undernourished people in developing countries has declined by only three million from 823 million to 820 million. (3) Nationally, not many states have recognized the right to adequate food by incorporating it into domestic legislation. India was one of the few countries which recognized the right to food in its constitution. In 2001, a non-governmental organization in Rajasthan filed a lawsuit, petitioning against all state governments of India for the violation of the right to food. (4) The Supreme Court of India recognized the right to food as derived from the Constitution of India and issued interim orders to state governments to implement food security programs. Yet, the effectiveness of the implementation of the food security programs to the poor and hungry following the recognition of the right to food has been disappointing. The reports by the Supreme Court's appointed Commissioner showed that the results of implementation of court interim orders fell short of the realization of the right to food in India.
The Indian failures raise two larger questions about the right to food. Why does the right to food seem to be ineffective in tackling the problem of food insecurity? What is the reason for the gap between legal entitlement and reality? The first possibility concerns the enforcement mechanism of the right to food: monitoring system, access to justice and availability of resources. The second concerns the formulation of the right to food itself. It is the second limb that will be the focus of this paper.
The formulation of the right to food must be framed in such a way as to tackle the cause of hunger and to oblige states to take steps to cure this cause and to refrain from taking steps that will aggravate hunger. In India, the reason for hunger amidst plenty lies in the social and economic inequality within the country. The disparity in the distribution of food and economic resources within the country is not merely a matter of income inequality based on social class. It is linked more fundamentally to the inherent inequality established by the traditional and cultural stratification in the Indian society. Social division in India based on caste and gender causes resources and control to be concentrated on the more advantaged strata of the society. People in the lower strata of the social structure are denied access to resources, and face obstacles in the free movement between social strata or the channeling of resources or power from one to another. Poverty and hunger result from the unequal distribution of opportunities and rights, and states are no doubt responsible for circumstances that cause hunger. In such a case, to eliminate hunger and to realize food security, the inequality which blocked the free flow of resources has to be broken.
The idea of social inequality as the real obstacle to food security sparks the quest of studying the right to food from an equality perspective. The question is: to what extent does the present formulation of the right to food adequately address the problem of social inequality as the root cause of intra-state inequality in the distribution of food leading to the problem of poverty amidst plenty? How could the reconceptualization of the right to food through mainstreaming equality help to address the inadequacy of the law?
My main argument is that social stratification blocks the equal and free distribution of economic and social resources and the means to access the food. This social stratification is caused by inequality and discrimination, e.g. gender, caste, and inequality of civil, cultural, economic, political and social rights, and urban bias. Such social cause is not fully addressed by the current formulation of the right to food that merely facilitates the access to resources, piecemeal identification of vulnerable groups, and merely focuses on the economic side of the problem--hunger is a social problem. The right to food should serve to break the wall of inequality through: mainstreaming equality in its formulation, drawing international human rights obligations that promote gender and race equality, and reconceptualizing equality using the notions of participation and empowerment of the disadvantaged. This serves to balance the power between advantaged and disadvantaged groups and to remove the social inequality. Only through this comprehensive formulation of the right to food can food security be progressively realized.
This article will not look at the dimension of international trade and inter-state distribution of hunger but will focus on hunger as a socio-economic problem within each state. India will be the country in focus. This article will start by looking at the cause of hunger as a problem of social inequality. To determine to what extent the right to food can achieve food security by breaking the wall of inequality, I will trace the history, development, and study the content of the right to food. Having recognized that the current formulation of the right to food fails to focus on equality and that the content of the right to food needs to be expanded by mainstreaming equality, I will look at different conceptions of equality in international human rights law. The following section will reconceptualize the right to food from the perspective of equality as participation and empowerment, and will draw on international human rights law on gender and race equality to supplement the content of the right to food. In the last section, I will look at how the understanding of the right to food based on equality as participation is further reinforced by the content of the right to development.
II. SOCIAL INEQUALITY AND HUNGER
The problem of poverty amidst plenty makes us ask: what causes the inequality and what inhibits the free access to food and economic resources available in a society? From a sociological perspective, a society is characterized by different patterns and dimensions of inequality--wealth, income, gender, race, education and occupation. Social stratification is the term used to describe the structure of social inequality in which unequal distribution of goods and services, rights and obligations, powers and prestige are studied. (5) Karl Marx analyzed society based on working class and capitalists. Weber understood social inequality as based on class and/or status. Class distinction is usually between property owners and nonproperty owners. Status groups distinguish themselves according to social honor and degrees of prestige.
Income inequality, resulting in unequal distribution of resources, is common to all societies. According to Davis and Moore, income inequality could be seen as virtuous and essential because it leads to the division of labor within different sectors of the society. (6) However, social stratification in India should not be seen as one merely based on income, but on an unjust and hereditary division of the society horizontally based on caste. Caste stratification in India has a religious origin which promotes social inequality and reinforces the rigidity of the system. This social inequality is mediated by suppression, deprivation, and oppression of the subordinated groups. Further, gender bias divides the society vertically and locks resources and power in the hands of the males. The stratification based on caste and gender, being the two major obstacles to food security, will now be looked at more closely.
A. Horizontal Stratification of Society: Caste
Caste is a status in closed groups. The caste system has its origin in the Hindu religion--the Law of Manu--which has ruled India for thousands of years. (7) A society is divided into people of four castes with descending priority and prestige associated with particular social occupations: the Brahmim (priests and scholars), Kshatriyas (rulers and soldiers), Vaishyas (merchants and farmers), and the Shudras (servants). (8) The people outside the caste system, who are of the lowest level of the social hierarchy, are the untouchables, or "dalits," which means the oppressed. (9)
Rights, power, resources, and food are heavily concentrated in the upper castes. Lenski stated that upward mobility by individuals in a caste system is illegitimate and often impossible. (10) Discrimination against the lower castes in the form of deprivation of various rights, entitlements, and opportunities to participate in economic and social activities and access to resources in the society is common, resulting in persistent aggravated poverty.
Untouchables, being of the lowest status in the society, are mostly associated with hunger, poverty, social exclusion, and landlessness. Their rights to participate in society, to access economic resources, and to earn a living wage are all suppressed, resulting in a vicious cycle of incapacity and poverty. (11) They have no legitimate place in the society, and are considered polluted, impure, and unworthy even of touch. Their social occupation involves "skinning animal carcasses, tanning leather and making shoes and belts; butchery of animals; removal of human waste; [and] attendance at cremation grounds." (12) Upendra Baxi and Oliver Mendelsohn state that "the untouchables represented a people who had historically been subjected to almost unimaginable discrimination." (13) According to the National Campaign on Dalit Human Rights, Dalits are prohibited from eating together with other caste members. They are segregated in seating and food arrangements in village functions and festivals. They are denied access to common water sources because they are regarded as polluting them. Caste discrimination is more serious in rural areas, and in private spheres of the society such as households. (14)
Although Article 17 of the Constitution of India abolished "untouchability," (15) the idea of inherent inequality and individual differences is too deeply embedded in religion and culture to be removed. "In the caste system, inequality is the ideological basis for a good society; this being the case, caste society does not deny the practice of discrimination; it instead rejects the concept of discrimination itself." (16)
Lower castes and untouchables are deprived of their legitimate rights to access economic resources, participate in society, and be free from discrimination. Though states have food aid programs and give special treatment to vulnerable groups, these piecemeal approaches are inadequate, often miss the target, and are ineffective because their top-down provision of food fails to enable vulnerable groups to become self-sufficient by participating in economic production in society in return for income and food. Therefore, a structural change in the norm of inequality is needed to enable people to participate in society for food and work. The emphasis on equality in relation to food security is essential.
B. Vertical Stratification of Society: Gender
In a stratified society based on gender, rights, entitlements, resources, and control are concentrated in males at the expense of females. Women are being discriminated against and deprived of access to food. This is more serious in rural and developing regions and is the cause of women suffering more from poverty and hunger.
There are many different facets of inequality faced by women as a result of social stratification, which are found in both public spheres and in private household settings. Those relating to food include, inter alia, ownership inequality and household inequality. (17)
Concerning ownership inequality, property rights in traditional societies favor men. In many rural societies, inheritance of land passes to men only. Since land is a primary means of production of food and mortgage for money to do business, the inequality in property rights means that women are generally in a more vulnerable position than men and have to depend on men as the head of the family to channel resources and food to them. (18)
Household inequality refers to gender discrimination within the family setting. For example, the family arrangement that women have to share most of the burden of housework and the traditional attitude that women should take the role of taking care of their own household means that they have less of a chance to work and become economically independent. In societies where the status of women is lower compared to men, women's rights to economic resources, including food, are often compromised for men's corresponding rights. (19)
In many Asian countries, female mortality rates are significantly higher than that of males because gender inequality and bias leads to widespread neglect of women's health, nutrition and other interests that influence their survival. (20) This leads to Amartya Sen's concept of "missing women": though women outnumbered men by birth, their population is lower compared to men at maturity. (21) This means that a portion of women perish through the life and death discrimination which deprives them of food, health and other opportunities of survival. (22)
Social stratification based on gender distorts distribution and access to food. Such social inequality must be addressed by states in order to promote the realization of the right to food. In the next section, I will study how the right to food has so far been used by the international community to tackle the problem of hunger.
III. THE RIGHT TO FOOD
In a world with specific guarantees of human rights to life and liberty, widespread hunger is unacceptable in international law as a violation of the dignity of human beings. It is generally acceptable in principle in international law that there exist human rights to food and freedom from hunger. But the specific normative content of the right to food has only evolved over recent years as a separate and distinctive economic, social and cultural right. In this section, I will trace the development and examine the content of the right to food in international law.
A. Development of the Right to Food
The origin of the right to food can be traced back to the Universal Declaration of Human Rights 1948. (23) However, the right was not separately dealt with in the Declaration, but was subsumed and embraced under the universal right to have an adequate standard of living, which includes food, clothing, housing, medical care, social services, etc. in Article 25.
The most important piece of international documentation which guarantees the right to food is the Covenant on the Economic, Social and Cultural Rights (ICESCR). Article 11(1) states that:
The State Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing and to the continuous improvement of living conditions. The State Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent. (24)
The scope and nature of a state's duty to ensure realization of the right is not clear in the Covenant. Thus there have been calls to further explain the content of the right to food. The World Food Summit Plan of Actions 1996 invited the UN High Commissioner for Human Rights to better define the rights related to food in Article 11 of the ICESCR and to promote ways to implement and realize these rights. (25)
In 1997, the FoodFirst Information and Action Network, World Alliance for Nutrition and Human Rights and the Institute Jacques Maritain International endorsed a draft International Code of Conduct on the Human Right to Adequate Food, to "provide general principles and guidelines for the domestic and international implementation of the right to adequate food." (26)
In response to the Rome Declaration and Plan of Action adopted by the 1996 Summit, and taking into consideration the draft Code of Conduct, the Committee on Economic, Social and Cultural Rights adopted the General Comment No. 12, (27) which is now the recent and authoritative legal interpretation of the content of the right to adequate food. It defined the right to food as follows:
The right to adequate food is realized when every man, woman and child, alone or in community with others, has physical and economic access at all times to adequate food or means for its procurement. (28)
As a follow up, the Food and Agriculture Organization of the United Nations (FAO), in response to the World Food Summit five years later in 2002, set up an intergovernmental working group for the drafting of voluntary guidelines to assist States to achieve the progressive realization of the right to food.
The Special Rapporteur on the Right to Food also contributed valuably in developing the jurisprudence of the right to food and monitoring its implementation at both the national and international level. Mr. Jean Ziegler was appointed as the Special Rapporteur from July 2000 to April 2008, during which he submitted mission reports of Niger, Bangladesh, Mongolia, Ethiopia, Guatemala, India, Liban and Brazil. He also looked at issues concerning the right to water, the right to access to agrarian land, international trade and the right to food, children's right to food, and hunger refugees. The new Special Rapporteur on the Right to Food, Mr. Oliver De Schutter, was appointed on May 1, 2008.
B. Legal Content of the Right to Food
1. Freedom from Hunger
The right to adequate food under Article 11(1) of the ICESCR emanates from, and forms part of, the more general right to an "adequate standard of living." Article 11(2) more clearly recognizes the right of everyone "to be free from hunger" and specifically requires States to implement measures to proliferate the realization of such right. (29) The issue is whether there is a difference between the right to food and a right to be free from hunger. The Article recognizes the right to be free from hunger as "fundamental." Henry Shue argues that ICESCR must be read as establishing priority for the right to food when it comes to allocation of available resources. Philip Alston points out that the "right to adequate food" in paragraph one is broader than the "right to be free from hunger" in paragraph two, but the first one is the appropriate overall norm since there is no indication that the drafter intended to limit or narrow the scope of the right in paragraph one. (30) Also, he argues that the right to adequate food facilitates the adoption of a maximalist approach, while the right to be free from hunger is only a sub-norm which concerns the satisfaction of bare minimum needs. Therefore, while it may be appropriate to focus on freedom from hunger as a starting point, it is only the first step towards a full realization of the right to adequate food. (31) However, Asbjorn Eide thinks the right to adequate food is only a minimum threshold approach, keeping in mind the political and ideological controversies concerning the economic system and the role of the States. (32) Under the ICESCR, States have the ultimate obligation to achieve "full realization." (33) Though the result is not necessarily to be achieved immediately, States must, with their available resources, take steps towards the goal within a short period of time after the ICESCR's entry into force for the States concerned. "Progressive realization" imposes an obligation to move with the best possible expediency and efficiency towards the goal. Deliberate retrogressive measures must be fully justified in light of the availability of resources, and the totality of rights in the ICESCR. (34)
2. The Meaning of Adequate Food
The Committee frequently uses the measures of calorie intake as a means of assessing the adequacy of food supply. However, adequate food could mean more than a quantitative sufficiency of food supply and include qualitative elements, such as ensuring food is healthy, culturally acceptable and safe. Thus the obligation of States may go beyond merely preventing malnutrition caused by starvation.
General Comment No. 12 states that the core content of the right to adequate food implies:
"The availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture; the accessibility of such food in ways that are sustainable and that do not interfere with the enjoyment of other human rights." (35)
Availability means "the possibilities either for feeding oneself directly from productive land or other natural resources, or for well functioning distribution, processing and market systems." (36)
Accessibility includes both economic and physical aspects. (37) Economic accessibility means that the "financial costs associated with the acquisition of food for an adequate diet should be at a level such that the attainment and satisfaction of other basic needs are not threatened or compromised." Physical accessibility, on the other hand, means that "adequate food must be accessible to everyone, including physically vulnerable individuals, such as infants and young children, elderly people, the physically disabled, the terminally ill and persons with persistent medical problems." (38)
3. The Obligations of States
Article 2(1) of the ICESCR provides that States have to "take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of [their] available resources" with a view to achieve "full realization" of the right to food. (39) The specific measures that States are required to take include "improv[ing] methods of production, conservation and distribution of food," "achiev[ing] the most efficient development and utilization of natural resources." (40) The provisions are brief but it is clear that the role of the States is one of ensuring that the external conditions are such that individuals have the ability to feed themselves, rather than merely providing food aid. (41)
Further explanations of the duties of States are found in the General Comment No. 12. Under its formulation a State's obligation to realize the right to food is divided into three levels: the obligations to respect, to protect and to fulfill. (42)
a. Obligation to Respect
States must respect the freedom of individuals to access food and to use necessary resources to provide adequate food for themselves. This aspect of the duty is essentially negative which involves the State abstaining from interfering with the individual's existing access to food, water, land, income or other resources of production of food. For instance, States should not interfere with the right of the indigenous people to hold land and natural resources and should not deprive of their property rights without adequate compensation and without providing the opportunity for the indigenous people to participate in the decision making process. When applied to women, States are obliged to refrain from passing legislation that directly or indirectly discriminates against women's right to access to food, water, land, and work. Other obligations include the duties not to destroy access to markets for people depending on this access for their livelihood; not to destroy community- or family-based systems of social security; not to destroy future generation's food producing resources and food security; not to dismantle a program by a retrogressive measure unless forced so by lack of resources. (43)
b. Obligation to Protect
States are obliged to protect people from all forms of violation of the right to food by non-State actors. They have obligations "to ensure that enterprises or individuals do not deprive individuals of their access to adequate food." (44) States should pass laws establishing bodies to investigate and provide effective remedies if that right is violated. The obligation to protect entails both positive and negative duties. Examples of obligations by States include protection of the freedom of action and the use of resources against "more powerful economic interests; protection against fraud, against unethical behavior in trade and contractual relations, against the marketing and dumping of hazardous or dangerous products." (45)
The duty of States to protect shows the importance of targeting the people whose right to food are most frequently violated, or when violated, suffer the greatest extent. Women, indigenous people, and minorities are more likely to suffer from violation of the right to food. The Special Rapporteur pointed out that the obligation to protect the right to food may involve the Government "[taking] action if some people were denied access to jobs on the basis of gender, race or other forms of discrimination" and thus add a nondiscrimination perspective to this level of obligation. (46)
c. Obligation to Fulfill
Obligation to fulfill means the State must "pro-actively engage in activities intended to strengthen people's access to and utilization of resources and their means to ensure livelihood, including food security." (47) Whenever an individual or group is unable, for reasons beyond their control, to enjoy the right to adequate food by the means at their disposal, States should provide for the need directly. (48) Obligation to fulfill may take the form of assistance, e.g. improving employment prospects, introducing an agrarian reform program for the landless, or the direct provision of food or resources when the people's food security is threatened by unemployment, old age infirmity, disability, marginalization or for reasons beyond their control, e.g. drought, flood, armed conflict or collapse of economic activities. (49)
4. Implementation of the Right to Food and the Duty of Nondiscrimination
Article 11 states that the right to food is the "right of everyone." (50) Individuals are the principal holder of the right to food "without discrimination of any kind as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." (51)
The General Comment No. 12 emphasized "the need to prevent discrimination in access to food or resources for food." (52) Negatively, the State should not nullify or impair the equal enjoyment of the right to food by discrimination "on the grounds of race, color, sex, language, age, religion, political or other opinion, national or social origin, property, birth or other status." (53) Positively, State should guarantee:
full and equal access to economic resources, particularly for women, including the right to inheritance and the ownership of land and other property, credit, natural resources and appropriate technology; measures to respect and protect self-employment and work which provides a remuneration ensuring a decent living for wage earners and their families; maintaining registries on rights in land. (54)
Even when States face severe resource constraints, they should strive to ensure that the right to food is especially fulfilled for vulnerable groups. (55)
C. Progressive Realization
Article 2 of the ICESCR qualifies the right to food into a right which has to be realized progressively. States should take measures in stages to implement the right to food subject to their level of resources. States however, must not adopt regressive policies that lead to deterioration of the right to food. (56)
D. Relationship Between the Right to Food and Other Human Rights
All human rights are interdependent and indivisible; the right to food is connected to and complements other human rights. In his reports, the Special Rapporteur has examined the connection of the right to food with the rights to access to land (57) and water, (58) gender equality, right of indigenous peoples, (60) and children's rights. (61)
Mr. Arjun Sengupta, the U.N. Independent Expert on the Right to Development, linked access to food, access to primary health care and access to primary education to the implementation of the right to development and the alleviation of poverty. (62) When people are deprived of their land holdings without adequate compensation, they have no resources to produce food, or when they are discriminated against at work, they may be deprived of the means to earn an adequate income to have economic access to food. These are violations of the right to access to resources and the right to ownership of property. These same people can also be deprived of the opportunities to participate in society and politics and thus their voices are not heard. They may also be denied access to justice to claim their legal entitlement to adequate food.
The right to food includes the obligation to respect, protect and fulfill people's physical and economic access to food. These obligations are buttressed by the duty of non-discrimination. Is this formulation sufficient in addressing the problem of hunger caused by social inequality?
Before evaluating the right to food from an equality perspective, the following section will look at the principle of equality itself to see why it should be included in the content of the right to food.
IV. THE PRINCIPLE OF EQUALITY IN INTERNATIONAL HUMAN RIGHTS LAW
The principle of human equality is the constant theme running through all international human rights law. The U.N. Charter endorses the principle of equality and committed the new international body "to achieve international co-operation ... in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion." (63) Article 1 of the Universal Declaration of Human Rights (UDHR) affirms that "[a]ll human beings are born free and equal in dignity and rights" and Article 2 states that "everyone is entitled to the rights and freedoms set forth in this Declaration without distinction of any kind such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." (64) Yet, the link between equality and substantive human rights is not always apparent or focused in theory or practice. Given the central importance of the principle of equality as being UDHR's first article, it is paradoxical that equality in most substantive human rights does not extend beyond a mere negative obligation to eliminate discrimination in individual cases.
Traditionally, the more vigorous advocates of equality are the feminists. Only in recent years has there been a trend of "mainstreaming equality" in legislative approaches. The conception of equality is evolving, and its implementation is different in different contexts. The hard-law conception is fairly restricted but there are recent trends of broadening in soft-law instruments.
This section will look at: first, the traditional narrow conceptions of equality, i.e. formal equality and special treatment equality; second, the broader conception of equality as participation and empowerment; and third, Amartya Sen's participation theory, which supports the broader conception of equality. (65) The right to food should mainstream equality and non-discrimination by drawing theoretical foundations from the broader conception of equality and applying it in the interpretation and evaluation of the right to food.
A. Different Conceptions of Equality in Human Rights
Equality as a philosophical concept has different explanations and interpretations based on the vast amount of literature dedicated to it. First of all, Aristotle's Justice as Equality requires equal treatment for equals and unequal treatment for unequals. (66) Secondly, there is the equality of opportunity, which refers to the equal right to become unequal by competing against one's fellows, because, although there is equal opportunity to succeed, "only those genuinely superior in the desired attributes will enjoy rich opportunities to develop their qualities." (67) There is also the economic theory of utilitarian equality which states that equality of marginal utility embodies equal treatment of everyone's interests. (68)
In international human rights law, the development of the conception of equality was fairly modest until recent years. Feminism, however, has put forward vigorous movements to expand this limited conception of equality.
Some academics have surveyed and traced the development of different conceptions of equality in human rights. Sandra Fredman investigated the strengths and limitations of different conceptions of equality, and evaluated the application of these conceptions in racial discrimination legislations. (69) Cliona J.M. Kimber discerned three models of equality in international and domestic human rights law: Strict Identical Treatment, Identical Treatment Combined with Special Treatment, and the Subordination Principle, and discussed the three models in comparison with the principle of self-determination. (70) Christopher Preston used different feminist theories to evaluate the United Nations Convention documents regarding sex discrimination. (71) Feminists' theories of gender equality inform our understanding of different notions of equality. Although different academics use different terminology and have different focuses, the general conceptions of equality can be classified in the following categories.
B. Traditional Conceptions of Equality
The traditional conceptions of equality, though widely applied in international human rights conventions like ICCPR and ICESCR, are fairly limited in scope and do not offer adequate protection to disadvantaged groups.
1. Formal Equality
Formal equality means that like cases should be treated alike, and those who are different should be treated differently. This is procedural equality: so long as treatment is procedurally equal, it does not matter whether the dominant groups are treated well or poorly. (72) Thus, under this conception of equality, no substantive right is guaranteed. According to Kimber, the identical treatment approach is often found in legislation which incorporates the principle of non-discrimination. (73) One example of formal equality legislation would be the Implementation of the Principle of Equal Treatment for Men and Women enacted by the European Economic Community (EEC) which states, "there shall be no discrimination whatsoever on the grounds of sex either directly or indirectly by reference in particular to marital or family status." (74)
The advantage of this model of equality is that it is effective in removing direct discriminatory legislation and policies, e.g. land holding rights only for men but not women. Formal equality would raise subordinated groups to the same level as dominant groups if subordinated groups could show their sameness. Some feminists use this approach to propose that women are equal to men in every respect and thus should be given equal right to education, employment and government facilities. (75)
The problem with formal equality is that it may promote existing inequalities and allow indirect discrimination. The principle of formal equality does not inherently prescribe what circumstances or groups should be treated as similarly situated and which should not. Equal treatment of dominant and subordinated groups may not be the best way to promote equality, because subordinated groups may have greater needs and different circumstances apart from the dominant groups and thus require the States to provide different entitlements to achieve substantive equality. As Kimber has pointed out, the formal equality model "accepts the current social and political structures and assumes their continued existences." (76) In many situations, piecemeal redress of discrimination is inadequate in the promotion of equality. Formal equality does not challenge existing social, economic, legal, and political structures and does not see the need to reorganize those structures even if they constitute obstacles for more effective promotion of the rights of the disadvantaged groups. Thus, the development of another conception of equality appears.
2. Identical Treatment Combined with Special Treatment
Based on the difference theory, this conception of equality appreciates that people perform different roles in the society and have different needs. Equality of treatment is not sufficient to bring socially disadvantaged groups into the same footing as socially privileged groups. This theory recognizes that some vulnerable groups require special measures to put them in a position comparable to the rest of society. Under cultural feminism, the differences between men and women balance the different roles, functions, and specialties in a society, therefore acknowledging and placing value on the distinctiveness of women. (77) Ronald Dworkin put it this way:
There are two different sorts of rights.... The first is the right to equal treatment, which is the right to an equal distribution of some opportunity or resources or burden.... The second is the right to treatment as an equal, which is the right, not to receive the same distribution of some burden or benefit, but to be treated with the same respect and concern as anyone else. (78)
The latter sort of right corresponds to the right to special treatments.
This model of equality is broader in scope than formal equality in that it legitimizes the use of affirmative action, i.e. the application of different treatment to vulnerable groups in order to achieve equality of benefits and status in substance. This model "has a perceptive advantage in that it is respectful of difference and does not try to eliminate diversity through assimilation." (79)
The inherent problem in this equality model is that it conceives the dominant group as the ideal against whom to measure marginalized groups. This equality model aims to put the subordinated group in line with the norm of the dominant group. (80) This highlights an important weakness in this equality model, as the special treatment of disadvantaged groups may lead to the societal view that the recipients are inferior or lack the ability to succeed without assistance. This attitude of inferiority could "entrench differences, where differences are based on stereotypical views of women and similar groups, or where these differences result from socialization into subordinate position." (81)
C. Broader Conception of Equality
The growing trend of a broader notion of equality as "participation" is found in converging academic views and human rights soft law and practice. This is a rejection of the limited traditional non-discrimination approach in dealing with social inequality. Equality as "participation" found its support in Dominance Feminism and Amartya Sen's Development as Freedom. (82) Kimber used the model "the subordination principle" but it refers to the same broader conception of equality. (83)
1. Equality as Participation
According to Kimber, this model of equality requires social and political structures to be changed to eliminate obstacles to participation of all people in the structures. (84) Subordination would then be eliminated by the inclusion and empowerment of the disadvantaged people. This model is partly grounded on Dominance Feminism which uses the language of equal access and equal participation and the demand for equal power. (85) MacKinnon argued that feminists should concentrate on identifying dominance. This treats gender equality issues as questions about the distribution of power, about male supremacy and female subordination. Dominance feminists rely on equality theory as a class-based theory; they see women as a subordinated class that needs protection.
Equality as participation essentially means an active integration and connection between the realization of civil and political rights and the achievement of social equality. The giving of rights to vote and to stand for election, to have due representation in government and legislative bodies, is conducive to raising the power and voice of the subordinated people in the social structure. It is a recognition that equality is not merely compensating discrimination of individuals in isolated cases, but the creation of an "enabling environment" by channeling social, economic resources and legal entitlement to the marginalized in order to generate a more equal and balanced social structure.
D. Participation in Amartya Sen's Development as Freedom
Amartya Sen sees equality as equality of "basic capabilities-a person being able to do certain basic things." (86) In Development as Freedom, he explains this capability as the freedom of political participation and democracy in a civil society.
According to Sen, inequality has an important role to play in hunger and poverty. Such inequality refers to inequality caused by social, economic and political arrangements which influence people's ability to acquire food and achieve health and nourishment. (87)
If the political and social arrangements discriminate against groups of people in society, they could be deprived of all sorts of resources, opportunities and entitlements, including: factors of production, such as technology, land, and employment opportunities; the ability to buy and sell goods and to determine market price, and access to markets.
Sen thinks that democracy is crucial to development and prevention of hunger. He believes that the absence of democracy is in itself an inequality of political rights and powers. (88) First, he concludes from empirical survey of the world, that democratic countries managed to avert famines altogether despite the worse food situation. Second, he reasons that in a democratic politics with civil and political rights of election and freedom of investigative journalism, there will be more information and transparency for the prevention of famine. Also, the incentive for the prevention of famine will be greater since political leaders will not be supported if they fail to prevent the situation of famine. With the guarantee of civil and political rights, citizens could challenge existing inequalities and the emergence of fresh inequality in social, financial, business and political arrangements. As a result, security and protection could be enhanced.
Three points can be extended from Sen's theory. First, Sen's idea that hunger and poverty are related to capability deprivation resulting from inequality in social economic and political arrangements supports us in mainstreaming equality in the right to food. Second, his idea of tackling the problem of poverty by looking not only at economic variables but also the wider social and political structures of a society, namely by promoting democracy and political participation, informs the content of the right to food. A wider definition of the right to food, which promotes equality, prevents discrimination, and guarantees civil and political rights of the subordinated groups to participate in the making of food-related policies, is essential to tackle the problem of hunger mediated by social inequality in an embracing and multi-dimensional manner. Third, the right to food should aim at creating an "enabling environment" for the subordinated people to empower themselves to achieve food sufficiency through participation and co-operation not only in political, but also in the social-economic activities of the society.
It has been said that Sen's focus on democracy and freedom in development is giving more weight to civil and political rights than social, economic and cultural rights. However, there is a crucial linkage between civil, political and economic and social rights. Without guarantee of civil and political rights, people could not participate fully in forming policies and changing social norms to promote social and economic rights. Yet, the guarantee of civil and political rights should go beyond formal democracy and formal participation in decision making to channel resources and to create an enabling environment for all people to participate in social economic activities. (89) This way, the right to food can be realized through changing norms which preclude access to food and empowering people to utilize resources to achieve self-sufficiency.
1. Participation of Women
In Development as Freedom, Sen looks specifically at gender discrimination leading to social inequality and poverty. (90) He thinks that the empowerment of women through female literacy and female labor force participation, recognition of women's property rights, and opportunities at political levels could reduce gender inequality and is a crucial step to foster freedom from hunger and development. However, he suggests that the empowerment of women has to go beyond the rather "classic" variables to include "the nature of the employment arrangements, attitudes of the family and of the society at large toward women's economic activities, and the economic and social circumstances that encourage or resist change in these attitudes." (91)
Sen's idea of going beyond "classic" variables supports a broader notion of equality in dealing with human rights issues. Equality should not merely be based on non-discrimination in economic activities, but also empowerment in wider economic and social circumstances. In relation to the human right to adequate food, the mere focus on economic entitlement and physical access to food is insufficient to achieve food security. The narrow view of economic resources overlooks the wider political and social arrangements that shape the inequitable allocation of resources in favor of the dominant against the subordinated groups. Therefore, a comprehensive formulation of the right to food should seek to promote social equality in food access.
The next section looks at how the broader notion of equality as participation should be, or is already to some extent, reflected in the normative content of the right to food in international human rights law.
V. EQUALITY AND THE RIGHT TO FOOD
The previous section looks at different notions of equality and proposes that the broader notion of equality as participation should be the conceptual framework by which the content of the right to food is interpreted. This section will use this conceptual framework to show how the content of the right to food under international and national laws has been narrowly interpreted and, additionally, how the recent soft law development in the area of the right to food has advanced from the traditional analysis and reflects the broader conceptions of equality in the right to food.
A. Traditional Conceptions of Equality in the Right To Food
The obligation of non-discrimination in existing international human rights treaties which recognizes the right to food focuses only on formal equality, or at most, special treatment to particular groups. The non-discrimination obligation does not go further to impose a duty on States to promote social equality in a more comprehensive manner to realize the right to food. Recalling from the last section, under formal equality, States are merely obliged to treat like people alike in terms of rights and obligations. Legislation must not directly or indirectly discriminate against people in their access to food, but there is no positive duty to create an environment that guarantees equality in the opportunities and means to food.
The non-discrimination obligation under the ICESCR does not protect the right to food beyond formal equality. It is a right to food "of everyone," (92) "without discrimination of any kind as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." (93) It is an obligation of the State to give equal treatment to everyone, which is different from the right to treatment as an equal. (94)
The inadequacy of this approach can be demonstrated in the State's obligation to fulfill the right to food. The government's provision of food aid in social safety measures are administered equally to households below certain poverty level, yet gender discrimination is common in apparently gender neutral food aid schemes as a result of inequality within the household. Men are traditionally and culturally the head and the breadwinner of the family and so are naturally responsible for receiving and distributing the food. Food in the hands of men means that women may be deprived of an equitable proportion of food aid received by the household if men withhold food from women. Thus affirmative actions are required to achieve substantive equality of rights.
2. General Comment No. 12
The General Comment No. 12 recognized the need to give special treatment to the more disadvantaged people in order to realize the right to food for all. Paragraph 13 acknowledged that "socially vulnerable groups such as landless persons and other particularly impoverished segments of the population may need attention through special programs" to ensure their economic and physical accessibility to food. (95) Special programs not only promote equality in law but also equality in fact, by using affirmative action which allows more entitlement to the disadvantaged to achieve an equal result for all the people. (96) Affirmative action can address indirect discrimination by removing the disproportionate impact of apparently neutral rules which are in fact prejudicial to subordinated groups.
However, the special treatment equality in relation to the right to food may produce reverse discrimination in the sense that, it may generate overcompensation to the vulnerable groups, leading to unequal allocation of resources, rights and entitlements, provoke discrimination against the vulnerable groups for being privileged and further reinforce social segregation. There may be a failure to target the right groups: by targeting groups that special treatments are not in most need, or by failing to target groups where special treatments are mostly in need.
An example of the inadequacy of special treatment equality in achieving food security is the Supreme Court case in India on the right to food.
3. The Right To Food Case in the Supreme Court in India
In People's Union for Civil Liberties v. Union of India and Others, (97) a public interest petition against the Government of India, the Indian Supreme Court in the Interim Orders recognized the right to food as derived from Articles 21 and 47 of the Constitution of India. Article 21 protects the right to life of every citizen, and Article 47 provides that "the State 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." (98)
The Supreme Court issued directions to the national governments of India to put specific categories of persons into the special food security program, e.g. destitute women, primitive tribes, and children. The Court also gave recommendations on a major food-based employment program, measures to tackle urban destitution, and the expansion of food aid schemes.
The underlying approach of the Supreme Court is to provide special treatment to the subordinated groups so as to achieve equality in food entitlement. However, these remedial measures are top-down, of limited scope, and focus only on the process of production and distribution of food without further regard to the institutional, social and political contexts in which the problem of poverty amidst plenty occur. The Commissioner in his fourth report commented that:
[i]n many cases they have led to substantial improvements in specific aspects of the food system. However, the orders passed so far are not equal to the task of guaranteeing freedom from hunger in India, and even these orders have been routinely violated. Bolder action is needed if the right to food is to become a reality. (99)
B. Broader Conception of Equality in the Right To Food
The wider conceptual framework of equality as participation gains more support in soft law development. The Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security (the Voluntary Guidelines) were prepared by the Food and Agriculture Organization InterGovernmental Working Group in 2002-04 as a follow up to the World Food Summit: Five Years Later, to "provide practical guidance to States in their implementation of the progressive realization of the right to adequate food in the context of national food security." (100) The Voluntary Guidelines were adopted by the FAO Council in November 2004. It represents a new broader approach to the right to food mainstreaming equality as participation.
The Voluntary Guidelines include much broader obligations on States than the ICESCR and General Comment No. 12. They reaffirm the indivisibility of all human rights, and recognize the interdependence between civil and political rights and the right to food. They take into account a wide range of important considerations and principles, including equality and nondiscrimination, participation and inclusion, accountability and the rule of law:
States should promote democracy, the rule of law, sustainable development and good governance, and promote and protect human rights in order to empower individuals and civil society to make demands on their governments, devise policies that address their specific needs and ensure the accountability and transparency of governments and state decision-making processes in implementing such policies. (101)
In other words, States should promote civil and political rights to help realize the right to food. Participation by people is the only means to transform the top-down model of food aid into a bottom-up model of self-subsistence. To promote participation, States are encouraged to "consult with civil society organizations and other key stakeholders at national and regional levels, including small-scale and traditional farmers, the private sector, women and youth associations." (102) States may need to put appropriate institutions and organizational structures in place to achieve the purpose of the Voluntary Guidelines, and such institutions should ensure transparency, accountability, and the participation of groups most affected by food security. (103) Guideline 6 encourages States to apply a multi-stakeholder approach to national food security. (104) Guideline 7 invites States to adopt the right to food at the national level and to provide adequate and effective remedies for breaches. (105) Guideline 8 provides for non-discrimination in the access to resources and assets, and specifically ensures women and vulnerable groups full and equal participation in the economy. (106) To strengthen individuals' ability to participate in food-related policy decisions that may affect them, States are urged to invest resources in education and in raising awareness. (107)
The benefit of this broad approach is that participation by all people could effectuate changes in social norms and generate a more inclusive social, economic, and political environment by challenging existing inequalities. The under-privileged could empower themselves to leave the vicious cycle of poverty and hunger through increased freedom and status achieved by the guarantee of interdependent international human rights.
The next two sections will look more specifically at gender and caste discrimination in relation to the right to food.
VI. SEX DISCRIMINATION AND THE RIGHT TO FOOD
Until recent years, there has been a relative lack of acknowledgment of gender equality in defining the substantive content of a human right. (108) Now, there is a wider recognition of gender issues, and of the relationship between gender and the right to food. (109) At the sociological level, gender inequality causes women to suffer more in poverty and hunger situations. At the legal level, there is acknowledgement of the interdependence of the right to food and women's rights, and recognition that protection of the former is essential to the protection of the latter. The relevant legislation on gender discrimination could be taken to supplement the content of the right to food. The following discussion focuses on the international human rights law relating to the protection of the right to food for women.
A. International Human Rights Law on Women and the Right to Food
1. Traditional Conception of Equality
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (110) protects women from sex discrimination in relation to food. The right to food is addressed in the Preamble, which states that the Convention is "concerned that in situation of poverty women have the least access to food, health, education, training and opportunities for employment and other needs." (111) Article 14 addresses the particular vulnerability of women in rural areas and in developing countries. It ensures that States "take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women, that they participate in and benefit from rural development." (112) States should also provide women with access to training and education, employment opportunities, agricultural credit and loans, land, and market facilities, all of which relate to the process of production and contribute to the right to food. (113)
However, CEDAW is inadequate in its protection of women in that its equality guarantee is limited to formal equality and special treatment equality. According to Laboni Amena Hoq, CEDAW uses the "flawed test of similarity/difference between men and women as the measure of gender justice in public policy." (114) Merely giving equal rights to all will not ensure that these rights are enjoyed by women unless women are empowered to claim them.
In addition, CEDAW adopts a piecemeal approach in the protection of individual rights. The mere compensation or elimination of individual cases of unequal treatment of women is not sufficient to change the social norm and elevate the status of women. (115) The extensive reservation to CEDAW by States makes the effectiveness of the equality guarantee questionable.
2. Broader Conception of Equality
The international community began to recognize that simply giving women the same rights that are granted to men is not sufficient to create social equality, since women are not empowered to claim these rights and social attitudes remain unchanged. The broader conception of equality as participation as informed by Dominant Feminism is found in most recent women's rights movements. Feminists proposed the reconceptualization of equality based on the full participation of women in all aspects of the family and community, thereby increasing their strength and capability to contribute to the development of society. Women should be empowered to formulate policies and programs which concern their welfare and access to resources and power. (116)
This reconceptualization of equality is reflected in the Voluntary Guidelines on the issue of women and the right to food. The Voluntary Guidelines recognize that States should promote women's full and equal participation in the economy by protecting their right to inherit and possess land. (117) Women should also be secured equal access to productive resources including credit, land and water. (118) States should consult with women associations with the aim of promoting their active participation in formulating agricultural and food production strategies. (119) The Voluntary Guidelines also recommend that States "adopt measures to eradicate any kind of discriminatory practices, especially with respect to gender, in order to achieve adequate levels of nutrition within the household." (120) There is a recognition of the need to change social norms and structures extending to the private sphere in order to empower women: "States may wish to give priority to channelling food assistance via women as a means of enhancing their decision-making role and ensuring that the food is used to meet the household's food requirements." (121)
This trend of empowerment and participation of women as the broader notion of the right to food adopted by the Voluntary Guidelines is to be welcomed. Women's rights to participation in the decision making process of social and economic policy will promote the right to food by focusing on the positive and negative effects of a seemingly neutral policy on the promotion of gender equality. The voice of women will be taken into account in the framing of food and other programs relating to equality in access to productive resources. This has the effect of changing the tradition and culture which has limited the rights of women in society.
In view of the above, fulfilling women's rights by guaranteeing de facto equality, instead of mere formal equality, is crucial to the realization of the right to food for all. It breaks down the wall that not only blocks the equitable distribution of entitlements and productive resources between men and women, but also prevents women from attaining the same rights as men. The next section will study the international human rights law that tackles the horizontal stratification of society in India based on caste, in relation to the right to food.
VII. CASTE DISCRIMINATION AND THE RIGHT TO FOOD
At present, 160 million people in India are untouchables. (122) Most of them continue to live in extreme poverty, without land or opportunities for better employment or education. Hunger is a major concern for them. Discrimination based on caste nullifies or impairs the enjoyment of equal access to food and other economic resources. Caste discrimination is a violation of international human rights law. The following is a discussion on, first, the international legal instruments on descent-based discrimination, second, relevant domestic legislation in India, and third, the effectiveness of these documents in protecting the right to food for all.
A. International Human Rights Law on Caste Discrimination and the Right to Food
The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) (123) has a broad notion of race discrimination, including discrimination based on color, descent, national and ethnic origin. (124) Article 1(1) prohibits discrimination based on descent. (125) The General Recommendation XXIX on Descent-based Discrimination requires States to take:
steps to identify those descent-based communities under their jurisdiction who suffer from discrimination, especially on the basis of caste and analogous systems of inherited status, and whose existence may be recognized on the basis of various factors including some or all of the following: inability or restricted ability to alter inherited status; socially enforced restrictions on marriage outside the community; private and public segregation, including in housing and education, access to public spaces, places of worship, and public sources of food and water; limitation of freedom to renounce inherited occupations or degrading or hazardous work; subjection to debt bondage; subjection to dehumanizing discourses referring to pollution or untouchability; and generalized lack of respect for their human dignity and equality. (126)
ICERD could be used to support a claim of violation of the right to food caused by social inequality. However, ICERD is rather limited in the notion of equality that it guarantees. The conceptions of equality in ICERD are restricted to formal equality and special measures. (127) The problem with these conceptions is that the special rights are only granted until the objectives are achieved. It has been suggested that ICERD does not require more than redress of past discrimination. (128) The better formulation of non-discrimination rights should encourage participation of vulnerable groups in decision-making processes through looking at the problem, working out solutions, and devising strategies towards elimination of the problem. (129) This approach seems to be favored by the General Recommendation XXIX. (130)
The General Recommendation XXIX can inform the content of the right to food. It suggests measures to promote equality in access to justice, and to guarantee civil, cultural, economic, political and social rights of descent-based communities. (131) States have to "ensure that authorities at all levels in the country concerned involve members of descent-based communities in decisions which affect them," and to guarantee these members "the right to participate in elections, to vote and stand for election on the basis of equal and universal suffrage, and to have due representation in government and legislative bodies." (132) These measures aim to achieve social equality by participation and empowerment, which can have positive effects in reducing poverty of descent-based communities and the progressive realization of the right to food, amongst various other social and economic rights. The content of the right to food should therefore include such comprehensive measures as found in the General Recommendation XXIX, e.g., eradicate poverty among descent-based communities and eliminate social exclusion or marginalization, promote employment, access to health and education. (133)
The General Recommendation XXIX is in line with the approach of the Voluntary Guidelines which oblige States to promote civil and political rights and other social and economic rights with a view towards generating social inclusion and reducing poverty and hunger. It is also convergent with Sen's proposition to alleviate poverty and inequality by empowering people, increasing their capability and actively involving them in the process of government decision-making.
VIII. THE RIGHT TO DEVELOPMENT AND THE RIGHT TO FOOD
The right to food based on the broader notion of equality as participation can be enriched and reinforced by the right to development.
A. The Right to Development
According to Article 1, paragraph 1 of the Declaration on the Right to Development 1986, (134) "the right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized." (135) Development is a process by which human beings remove themselves from hunger, poverty and capability deprivation towards "long and healthy life, being educated, having access to resources needed for a decent standard of living and being able to participate in the life of one's community." (136) The right to development contains various aspects, including popular participation in development, (137) equality of opportunity, (138) and "the creation of favorable conditions for the enjoyment of other civil, political, economic, social and cultural rights." (139)
B. Linkages Between the Right to Food and the Right to Development
The interdependence between the two rights is well established. It is stated in the Preamble of the Declaration, and reiterated in Article 6, paragraph 2, that "all human rights and fundamental freedoms are indivisible and interdependent [and that, in order to promote development,] equal attention and urgent consideration should be given to the implementation, promotion and protection of civil, political, economic, social and cultural rights." (140) In particular, Article 8 of the Declaration requires States at the national level to ensure equality of opportunity for all in their access to resources including food. (141) As the U.N. Independent Expert on the Right to Development, Mr. Arjun Sengupta, stated in his third independent expert report under the Commission on Human Rights, realization of the right to food is an element of the right to development, and the General Comment No. 12 should "[look] at the provision of food as part of a country's overall development programme, bringing in fiscal, trade and monetary policies and the issues of macroeconomic balance." (142) Compliance with the obligations to respect, protect and fulfill the right to food by making available and accessible resources physically and economically, based on the principle of equality, is an essential part to the realization of the right to development. (143)
Apart from the above-mentioned connection of the two rights, the element of participation in the right to development also corresponds to the broader notion of equality as participation, and can be used to support a liberal interpretation of the right to food.
Under Article 2, paragraph 1 of the Declaration, the human person should be the active participant of the right to development. Article 8, paragraph 2 asserts that "[s]tates should encourage popular participation in all spheres as an important factor in development and in the full realization of all human rights." (144) Participation has been described as the right through which all other rights in the Declaration are exercised and protected. (145) The significance of participation can be demonstrated from the following: first, the Human Development Report 2002 emphasized that participation by the people in the rules and institutions that shape their community is a basic human right in itself. (146) Second, participation in governance enables resources to be allocated effectively to promote development. "When local people are consulted about the location of a new health clinic, for example, there is a better chance it will be built in the right place." (147) Third, participation and inclusion of different groups is equitable and can promote equality.
It was said that participation is linked closely with democracy. (148) "Democracy is the only political regime that guarantees political and civil freedoms and the right to participate." (149) Those freedoms are guaranteed in the ICCPR, which the Declaration expressly requires States to implement, promote and protect. (150) The Vienna Declaration and Programme of Action in 1993 (151) emphasized the role of equal and full participation in the development of the poorest people and of women "in political, civil, economic, social and cultural life," (152) and the need to eradicate all forms of discrimination on grounds of sex. It also urged States to take steps to "to promote the human rights of the poorest, and to put an end to extreme poverty and social exclusion and to promote the enjoyment of the fruits of social progress." (153)
The right to development fleshed out the concept of participation and is essential in supplementing and strengthening the broader equality and participation principle in the right to food.
2. Equality of Opportunity
The right to development actively monitors discrimination and seeks to promote equality for all. Article 6, paragraph 1 of the Declaration states that "[a]ll States should co-operate with a view to promoting, encouraging and strengthening universal respect for and observance of all human rights and fundamental freedoms for all without any distinction as to race, sex, language or religion." (154) Article 8, paragraph 1 of the Declaration requires States at the national level to ensure equality of opportunity for all in their access to resources including food. (155)
To the subordinated groups, an equality guarantee in a right-based approach to development is important. This means that States should have a more equitable distribution of resources and efforts in urban and rural development, and in formulation of development programs without overlooking the opportunities and interests of the less advantaged.
The right to development also places particular attention on gender equality. Article 8, paragraph 1 of the Declaration states that "[e]ffective measures should be undertaken to ensure that women have an active role in the development process." (156) According to Sen, women have a significant role to play in the development process. (157) Women, being the agent of development, are able to perform various social and economic functions to help in the economic growth, e.g., in India women engage in business enterprises, participate in high political positions, own land and perform agricultural activities, and conserve natural resources. Women's bearing capability also means that the next generation is dependent upon them. Gender equality can help to promote child survival and reduce the fertility rate. Women's rights should be protected to enable them to take an active role in development.
C. The Right to Development, Sen's Development as Freedom and the Right to Food
Sen's capability approach and development as freedom has been adopted by the United Nations Development Program as the theme of the Human Development Report 2002. It is believed that promotion of democracy and freedom is an essential step towards human development in the form of increasing capability of all people. Sen's idea of democracy as the key to development echoes with the emphasis on the guarantee of civil and political rights in the right to development. This in turn supports the mainstreaming of equality as participation to reconceptualize the right to food. The right to food should aim at creating an enabling environment by encouraging participation in decision-making concerning the production, distribution and utilization of resources.
The problem of hunger is one of social inequality. Discrimination caused by social stratification distorts access to food and economic resources, causing hunger and over-consumption to occur within the same state. An equality perspective on the guarantee to the right to food is essential in tackling the root cause of intra-state food insecurity.
The narrow conception of equality in existing legal standards has, however, been widely challenged as inadequate. A broadened approach of equality as participation has found support in recent soft law developments in human rights and by academics.
The right to food should be informed by this broader conception of equality. Political, social and economic participation of the vulnerable groups can effectuate a change in social norms through changes in social structure and power distribution in society. States have the primary obligation to create an environment that promotes participation in economic and social policies by all people to move toward realizing the universal right to food.
There has been a call to formalize the broader approach to the right to food in the Code of Conduct (158) and to put forward a Right to Food Convention. Much objection by States is based on the fact that current obligations are not being adequately fulfilled. But with the ineffectiveness of the current approach reflected in the alarming rate of hunger population, (159) States should be reminded that the right to food for all is not a political choice but a legal duty. It is a matter of fundamental human dignity and human lives.
* Research Assistant Professor, Faculty of Law, University of Hong Kong.
(1) United Nations World Food Programme, Winning the War on Hunger, http://www.wfp.org/policies/introduction/other/ documents/guide_winning_hunger/ ENG/Documents.pdf (last visited Feb. 19, 2009).
(2) See International Covenant on Economic, Social and Cultural Rights arts. 3, 11, Dec. 16, 1966, 993 U.N.T.S. 3 (entered into force Jan. 3, 1976) [hereinafter ICESCR] (setting forth goals of ICESCR and recognizing fundamental right to be free from hunger).
(3) FOOD AND AGRICULTURAL ORGANIZATION OF THE UNITED NATIONS, THE STATE OF FOOD INSECURITY IN THE WORLD 2006 4, 8 (2006), available at http://www.fao.org/docrep/009/a0750e/a0750e00.HTM.
(4) People's Union for Civil Liberties v. Union of India and others, Writ Petition (Civil) 196 of 2001.
(5) See JAMES LITTLEJOHN, SOCIAL STRATIFICATION 9 (1972) (describing attributes of positions within society as opposed to those of individual).
(6) See Kingsley Davis & Wilbert E. Moore, Some Principles of Stratification, in READINGS ON SOCIAL STRATIFICATION 368, 369 (Melvin M. Tumin ed., 1970) (describing functional theory of stratification).
(7) ASIAN HUMAN RIGHTS COMMISSION (AHRC) AND ASIAN LEGAL RESOURCE CENTRE (ALRC), PROTECTION AND PARTICIPATION: HUMAN RIGHTS APPROACH 52-59 (2003) [hereinafter AHRC & ALRC].
(8) LITTLEJOHN, supra note 5, at 69.
(9) BASIL FERNANDO, DEMORALIZATION AND HOPE 92 (2000).
(10) LITTLEJOHN, supra note 5, at 89.
(11) See OLIVER MENDELSOHN & UPENDRA BAXI, THE RIGHTS OF SUBORDINATED PEOPLES 64, 78-79 (Delhi, Oxford University Press 1999) (discussing untouchables' socio-political ineffectiveness).
(12) D Jeevan Kumar, Law, Police and Weaker Sections, in POLICING INDIA IN THE NEW MILLENNIUM 419, 420 (P. J. Alexander ed., 2002).
(13) MENDELSOHN & BAXI, supra note 11, at 1.
(14) National Campaign on Dalit Human Rights, Who are Dalits? & What is Untouchability?, http://www.ncdhr.org.in/ ncdhr/general-info-misc-pages/wadwiu (last visited Feb. 19, 2009).
(15) INDIA CONST. art. 17. "Untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law."
(16) AHRC & ALRC, supra note 7, at 56-57.
(17) Amartya Sen, Many Faces of Gender Inequality, FRONTLINE, Oct. 27 - Nov. 9, 2001 [hereinafter Many Faces of Gender Inequality].
(23) Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d Sess., U.N. Doc. A/810 (Dec. 10, 1948).
(24) ICESCR, supra note 2, art. 11(1).
(25) World Food Summit, Plan of Action, Commitment 7, Objective 7.4, Nov. 13-17, 1996, 36 I.L.M. 776 (1997).
(26) Food First/Institute for Food and Development Policy, International Code of Conduct on the Human Right to Adequate Food, art. 1 (1997), http://www.foodfirst.org/progs/humanrts/conduct/html (last visited Feb. 19, 2009).
(27) U.N. Econ. & Soc. Council, Committee on Economic Social and Cultural Rights, General Comment 12, The Right to Adequate Food, U.N. Doc. E/C.12/1999/5 (May 12, 1999) [hereinafter General Comment 12].
(28) Id. para. 6.
(29) ICESCR, supra note 2, art. 11(2).
(30) Philip Alston, International Law and the Human Right to Food, in THE RIGHT TO FOOD 9, 32 (Philip Alston & Katarina Tomasevski eds., 1984) (arguing "right to adequate food" appropriate norm).
(32) See Asborn Eide, Strategies for the Realization of the Right to Food, in HUMAN RIGHTS IN THE TWENTY-FIRST CENTURY: A GLOBAL CHALLENGE 459, 466-70 (Kathleen E. Mahoney & Paul Mahoney eds., 1993) (arguing pragmative approach to human rights).
(33) ICESCR, supra note 2, art. 2(1).
(34) U.N. Econ. & Soc. Council, Committee on Economic, Social and Cultural Rights, General Comment 3, The Nature of States Parties Obligations, para. 9, U.N. Doc. E/1991/23 (Dec. 14, 1990).
(35) General Comment 12, supra note 27, para. 8.
(36) Id. para. 12.
(37) See id. para. 13 (explaining broad interpretation of accessibility).
(39) ICESCR, supra note 2, art. 2(1).
(40) Id. art. 11(2).
(41) See Henry Shue, The Interdependence of Duties, in THE RIGHT TO FOOD, supra note 30, at 87-88, 94 (suggesting states have duty to secure long-term rights).
(42) General Comment 12, supra note 27, para. 15.
(43) Alston, supra note 30, at 17-18, 37-38.
(44) General Comment 12, supra note 27, para. 15.
(45) Eide, supra note 32, at 464.
(46) The Secretary-General, The Right to Food, para. 28, delivered to the General Assembly, U.N.Doc A/56/210 (July 23, 2001) [hereinafter Preliminary Report on the Right to Food].
(47) General Comment 12, supra note 27, para. 15.
(49) Preliminary Report on the Right to Food, supra note 46, para. 29.
(50) ICESCR, supra note 2, art. 11.
(51) Id. art. 2(2).
(52) General Comment 12, supra note 27, para. 26.
(53) Id. para. 18.
(54) Id. para. 26.
(55) Id. para. 28.
(56) Preliminary Report on the Right to Food, supra note 46, para. 33.
(57) The Secretary-General, The Right to Food, para. 22, delivered to the General Assembly, U.N.Doc. A/57/356 (Aug. 27, 2002) [hereinafter Report on the Right to Food].
(58) U.N. Econ. & Soc. Council, Commission on Human Rights, Economic Social and Cultural Rights: The Right to Food, U.N.Doc. E/CN.4/2003/54 (Jan. 10, 2003); Preliminary Report on the Right to Food, supra note 46.
(59) The Secretary-General, The Right to Food, delivered to the General Assembly, U.N. Doc. A/58/330 (Aug. 28, 2003).
(60) The Secretary General, The Right to Food, delivered to the General Assembly, U.N. Doc. A/60/350 (Sept. 12, 2005).
(61) U.N. Human Rights Council, Report of the Special Rapporteur on the Right to Food, U.N. Doc. A/HRC/4/30 (Jan. 19, 2007) (prepared by Jean Ziegler).
(62) U.N. Econ. & Soc. Council, Commission on Human Rights, Third Report of the Independent Expert on the Right to Development, Mr. Arjun Sengupta, U.N.Doc. E/CN.4/WG.18/2001/2 (Jan. 2, 2001) (prepared by Arjun Sengupta).
(63) U.N. Charter art. 1, para. 3.
(64) Universal Declaration of Human Rights, G.A. Res. 217A, arts. 1-2, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948).
(65) See generally AMARTYA SEN, DEVELOPMENT AS FREEDOM (1999) [hereinafter DEVELOPMENT AS FREEDOM] (exploring relationship between development and freedom).
(66) Aristotle, Justice as Equality, in EQUALITY: SELECTED READINGS 7, 24 (Louis P. Pojman & Robert Westmoreland eds., 1997).
(67) John Schaar, Equality of Opportunity, and Beyond, in EQUALITY: SELECTED READINGS 137, supra note 66, at 138.
(68) Amartya Sen, Equality of What, in THE TANNER LECTURES ON HUMAN VALUES 195 (S.M. McMurrin ed., 1980) [hereinafter Equality of What].
(69) Sandra Fredman, Combating Racism with Human Rights: The Right to Equality, in DISCRIMINATION AND HUMAN RIGHTS: THE CASE OF RACISM 9, 14-29 (Sandra Fredman ed., 2001) [hereinafter Combating Racism]. Fredman distinguished different notions of equality as: formal equality, equality of results, equality of opportunity, and a value driven approach to equality.
(70) Cliona J.M. Kimber, Equality or Self-Determination, in UNDERSTANDING HUMAN RIGHTS 266, 267-86 (Conor Gearty & Adam Tomkins eds., 1996).
(71) R. Christopher Preston & Ronald Z. Ahrens, United Nations Convention in Light of Feminist Theory, 8 MICH. J. GENDER & L. 1, 5-6 (2001).
(72) Sandra Fredman, Less Equal Than Others--Equality and Women's Rights, in UNDERSTANDING HUMAN RIGHTS 197, 199-204 (Conor Gearty & Adam Tomkins eds., 1999).
(73) Kimber, supra note 70, at 267.
(74) Council Directive 76/207/EEC, art. 2, 1976 O.J. (L39/40) (EEC).
(75) See Preston & Ahrens, supra note 71, at 7-8 (explaining shift away from Liberal Feminism to Equality Feminism).
(76) Kimber, supra note 70, at 269.
(77) See Catharine A. MacKinnon, Difference and Dominance: On Sex Discrimination, in FEMINIST LEGAL THEORY: READINGS IN LAW AND GENDER, 81, 82 (Katherine T. Bartlett & Rosanne Kennedy eds., 1991) (noting cultural feminism includes embracing differences between men and women).
(78) RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 227 (Harvard Univ. Press 1977).
(79) Kimber, supra note 70, at 271.
(81) Id. at 272.
(82) See generally DEVELOPMENT AS FREEDOM, supra note 65 (arguing individuals can contribute to achievement of freedoms though participation).
(83) Kimber, supra note 70, at 273.
(84) Id. at 273-75.
(86) Equality of What, supra note 68.
(87) DEVELOPMENT AS FREEDOM, supra note 65, at 162.
(88) Id. at 187.
(90) See id. at 104-07 (examining effects of gender discrimination on social inequality).
(91) Id. at 202.
(92) ICESCR, supra note 2, art. 11.
(93) Id. art. 2.
(94) See KATHERINE O'DONOVAN & ERIKA SZYSZCZAK, EQUALITY AND SEX DISCRIMINATION LAW 2-3 (1988) (exploring nuances of term equality).
(95) General Comment 12, supra note 27, para. 13.
(96) Cf. Combating Racism, supra note 69 passim (arguing equality as form to combat racism). The context was on race discrimination but the analysis is equally applicable more generally to other vulnerable groups suffering from discrimination.
(97) Writ Petition [Civil] No. 196 of 2001.
(98) INDIA CONST. arts. 21, 47.
(99) Fourth Report of the Commissioner to the Supreme Court of India in pursuant to People's Union for Civil Liberties v. Union of India and others (Writ Petition [Civil] No. 196 of 2001), Aug. 14, 2003, http://www.righttofoodindia.org/data/scfour.doc (last visited Feb. 19, 2009).
(100) FOOD AND AGRICULTURE ORGANIZATION OF THE UNITED NATIONS, VOLUNTARY GUIDELINES TO SUPPORT THE PROGRESSIVE REALIZATION OF THE RIGHT TO ADEQUATE FOOD IN THE CONTEXT OF NATIONAL FOOD SECURITY (2004), http://www.fao.org/docrep/meeting/009/y9825e/y9825e00.htm (last visited Feb. 19, 2009) [hereinafter VOLUNTARY GUIDELINES].
(101) Id. para. 1.2.
(102) Id. para. 3.8.
(103) Id. para. 5.
(104) Id. para. 6.
(105) Id. para. 7.
(106) Id. para. 8.
(107) Id. para. 11.
(108) Andrew Byrnes, Women, Feminism and International Human Rights Law--Methodological Myopia, Fundamental Flaws or Meaningful Marginalisation?: Some Current Issues, 12 AUS. YBIL 205 (1988).
(109) See generally FOOD AND AGRICULTURAL ORGANIZATION OF THE UNITED NATIONS, GENDER AND LAW--WOMEN'S RIGHTS IN AGRICULTURE (2002), http://www.fao.org/DOCREP/005/Y4311E/Y4311E00.HTM (last visited Feb. 19, 2009) (analyzing gender dimension of norms relating to agriculture).
(110) Convention on the Elimination of All Forms of Discrimination Against Women, Mar. 1, 1980, G.A. Res. 34/180, 34 U.N. GAOR Supp., U.N. Doc. A/34/46 (entered into force Sept. 3, 1981) [hereinafter CEDAW].
(111) Id. pmbl.
(112) Id. art. 14(2).
(114) Laboni Amena Hoq, The Women's Convention and Its Optional Protocol: Empowering Women to Claim Their Internationally Protected Rights, 32 COLUM. HUM. RTS. L. REV. 677, 721 (2001).
(116) Cf. General Assembly, Political Declaration, U.N.Doc. A/RES/S-23/2 (Nov. 16, 2000) (declaring commitment to help advancement of women globally based on Beijing Platform for Action); Further Initiatives to Implement the Beijing Declaration and Platform of Action, U.N.Doc. A/RES/S-23/3 (June 19, 2000) (outlining achievements and obstacles towards advancement of women and commitment to remedy shortcomings).
(117) VOLUNTARY GUIDELINES, supra note 100, para. 8.6.
(119) Id. para. 3.8.
(120) Id. para. 10.8.
(121) Id. para. 13.4.
(122) The Untouchables, http://www.untouchables.org/home.php (last visited Feb. 19, 2009).
(123) International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Dec. 21, 1965, 660 U.N.T.S. 195 (Jan. 4, 1969) [hereinafter ICERD].
(124) Kevin Boyle & Anneliese Baldaccini, A Critical Evaluation of International Human Rights Approaches to Racism, in DISCRIMINATION AND HUMAN RIGHTS: THE CASE OF RACISM 135, 152 (Sandra Fredman ed., 2001).
(125) The Committee on the Elimination of Racial Discrimination, General Recommendation No.XXIX on Art. 1, para. 1 of the Convention (Descent), Nov. 1, 2002 [hereinafter General Recommendation XXIX].
(126) Id. para. 1.
(127) See ICERD, supra note 123, art. 2(2) (setting forth measures to ensure adequate development and protection of certain racial groups).
(128) See Combating Racism, supra note 69, at 35-36.
(129) Id. at 27.
(130) General Recommendation XXIX, supra note 125.
(132) Id. paras. 27-28.
(133) Id. paras. 34, 36-37, 40, 44.
(134) Declaration on the Right to Development, G.A. Res. 41/128, U.N. Doc. A/RES/41/128 (Dec. 4, 1986) [hereinafter DRD].
(135) Id. art. 1, para. 1.
(136) U.N. DEVELOPMENT PROGRAM., HUMAN DEVELOPMENT REPORT: DEEPENING DEMOCRACY IN A FRAGMENTED WORLD 1, 13 (2002) [hereinafter HDR].
(137) DRD, supra note 134, arts. 2, 8(2).
(138) Id. art. 8(1).
(139) United Nations High Commissioner for Human Rights, Right to Development, Mar. 25, 2004, http://www.unhchr.ch/development/right-02.html (last visited Feb. 19, 2009).
(140) DRD, supra note 134, art. (6)2.
(141) Id. art. 8.
(142) Commission on Human Rights, Third Report of the Independent Expert on the Right to Development, Mr. Arjun Sengupta, Submitted In Accordance with Commission Resolution 2000/5, 12, U.N.Doc. E/CN.4/WG.18/2001/2 (Jan. 2, 2001) (prepared by Arjun Sengupta).
(144) DRD, supra note 134, art. 8, para. 2.
(145) The Secretary-General, Global Consultation on the Realization of the Right to Development as a Human Right, paras. 114-15, delivered by the U.N. Commission on Human Rights, U.N. Doc. E/CN.4/1990/9/Rev.1 (Sept. 26, 1990).
(146) See HDR, supra note 136, at 51 (discussing important role of democratic governance in human development).
(148) Isabella D. Bunn, The Right To Development: Implications for International Economic Law, 15 AM. U. INT'L L. REV. 1425, 1445 (2000).
(149) HDR, supra note 136, at 3.
(150) DRD, supra note 134, art. 6, para. 2.
(151) World Conference on Human Rights, June 14-25, 1993, Vienna Declaration and Programme of Action, U.N.Doc. A/CONF.157/23 (July 12, 1993).
(152) Id. Part 1, para. 18.
(153) Id. Part 1, para. 25.
(154) DRD, supra note 134, art. 6, para. 1
(155) Id. art. 8, para. 1.
(157) DEVELOPMENT AS FREEDOM, supra note 65, at 189.
(158) See Joe W. Pitts III, Observer's Note, The First U.N. Social Forum: History and Analysis, 31 DENV. J. INT'L L. & POL'Y 297 (2002) (evaluating first- ever U.N. Social Forum).
(159) U.N. Human Rights Council, Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, U.N. Doc. A/HRC/7/5 (Jan. 10, 2008) (prepared by Jean Ziegler).
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|Date:||Sep 22, 2009|
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