International Development Law Organization

‘Let them eat law’: The right to food, from soft consensus to hard reality

22 Oct 2012

As representatives of big United Nations agencies, NGOs and the American Bar Association gather in Rome to debate the justiciability of the right to food, some may wonder if the word itself can be successfully pronounced. 

It is, admittedly, a legal tongue-twister. Yet while the sounds are hard to crack, the concept isn’t: it all boils down to the notion that the right to adequate nutrition should be legally enforced; that one may stand up in court and have it recognized; that the law can, in fact, fill hungry stomachs. 

The meeting hosted by the International Development Law Organization (IDLO) highlights the organization’s growing focus on the intersection between the rule of law and food and health concerns. 

Geneva-based Irene Biglino, an IDLO consultant who drafted the meeting’s background paper, sees it as a ‘conceptual container’: an opportunity for experts to examine the world’s legal instruments for feeding itself, and how to sharpen those instruments further; to debate the effective recognition of the right to food, and ways to force it into reality even where it’s missing. 

That people have a right to food is no longer a moot point. What might once have been a controversial ‘positive’ right is now international law, part of the Covenant on Economic, Social and Cultural Rights. The Millennium Development Goals speak of halving hunger by 2015. UN Secretary-General Ban Ki-moon’s Zero Hunger Challenge, outlined earlier this year, has added extra urgency to the quest. 

The right to food, therefore, exists on paper: securing it in practice is the next big step. Recent estimates say more than eight-hundred million people are undernourished . The organizers of the Rome meeting believe that part of the answer, at least, lies in litigation: increasingly, around the world, the right to food is being tested in court. 

Quite apart from the immediate outcome of putting soup into bowls, the argument goes, litigation focuses minds on hunger and malnutrition. It spurs civic action against them. And it creates a ripple effect of social empowerment. 

“So much jurisprudence has emerged on ESC rights, especially in the last twenty years or so,” Dr Biglino explains. “So much case law — in national contexts, at the regional level…” 

The justiciability of the right to food, she suggests, is becoming fact under our very eyes, even before it’s had a chance to be truly controversial. 

In India, a decade of litigation by the People’s Union for Civil Liberties (PUCL) has obliged state governments to start food distribution programs for the most disadvantaged, and stopped them from rolling back existing schemes. It has mandated school meals. And it has forced steps to reduce chronic waste, which let food rot away in silos — it still does, though perhaps to a lesser extent — while people were starving. 

Despite mounting pressure on resources from demographic, climate and diet changes, the right to food is now protected, as an individual human right, in more than twenty constitutions. Taken together, the countries concerned, including Mexico and Brazil, concentrate a fair section of humanity. 

Elsewhere, even if the right to food is not explicitly present, the Rome meeting will be told how judicial interpretation can call it into being. National courts may thus be persuaded to read the right to food into other provisions, such as the right to life or dignity. It is all a matter of turning non-law into soft law into hard law. Or — as Dr Biglino puts it — of exploiting ‘varying layers of constitutional protection’. 

Dr Biglino’s own interest in the right to food dates back to a period of involvement with the Slow Food community in her hometown of Turin, as that group was moving away from promoting Italian delicacies towards articulating a philosophy of global healthy nutrition. She stresses that one of the pillars of the right to food, as internationally defined, is the principle of quality (alongside accessibility, availability and adequacy), rather than any prescribed number of calories. How well you get to eat, in other words, matters as much as how much. 

This argument goes down well with the man steering the Rome meeting, IDLO Head of Social Programs David Patterson. Worldwide, he points out, overweight and obesity are linked to more deaths than underweight. And while Mexico, say, has given the right to food constitutional protection, there is strong evidence that its people eat badly: even among the rural poor there, six out of ten women are overweight or obese. At both the national and international level, the law, Mr Patterson argues, must be used fearlessly not just to ensure people have enough to eat, but to keep junk off the table. 

For IDLO, in other words, food is health, and health is food. Both are life, and both are — or should be — law. The Rome debates will no doubt feature a volley of high legal concepts, some more easily pronounceable than others. But participants will agree it’s all ultimately about something quite simple: how what we put in our mouths makes us more dignified humans, in better societies.