Constitutionalizing an Enforceable Right to Food: A New Tool for Combating Hunger
McDermott, Michael J., Boston College International and Comparative Law Review
Abstract: Although international treaties recognize a right to food, few nations have established a domestic, legally enforceable right to food. A justiciable national right to food can provide a basis for legal redress, national food policies, and state aid programs. India, South Africa, and Brazil provide insight and lessons that can be applied to other nations, like Mexico, to identify effective means for creating a national right to food. This Note compares effective national right to food efforts and identifies essential elements underlying a justiciable national right to food. By evaluating the development of a right to food within in the international and national systems it is clear that the right to food is most effective when national constitutions provide justiciable means for legal redress and enforcement of that right.
When millions of people die in a famine, it is hard to avoid the thought that something terribly criminal is going on. The law, which defines and protects our rights as citizens, must somehow be compro- mised by these dreadful events . ... In seeking a remedy to this prob- lem of terrible vulnerability, it is natural to turn towards a reform of the legal system, so that rights of social security can be made to stand as guarantees of minimal protection and survival.
-Jean Drèze & Amartya Sen1
From 1997 to 2002, serious droughts threatened the lives of fifty million people in the northwest Indian state of Rajasthan.2 In early 2000, almost seventy-four percent of Rajasthan's villages were affected by drought, nearly fifty percent of all children in the state were mal- nourished, and half the state's rural population lived below the poverty line.3 Despite the drought, Rajasthan's food crisis was not entirely caused by a lack of food, but rather by a failure to distribute national surplus grain stocks to the region.4 In response to government inaction, the People's Union for Civil Liberties (PUCL), a non-governmental Indian civil liberties organization, utilized "Public Interest Litigation" standing, to sue the Indian government for endangering the Rajast- hani's "right to life" by violating their "right to food."5 PUCL argued that India's inaction violated the Rajasthan Famine Code of 1962 and prior case law that recognized a constitutional right to life with human dignity, and demanded access to adequate nutrition.6 After ten years of litigation, the People's Union for Civil Liberties case has produced interim court orders demanding the release of national stocks of surplus food- grains to famine stricken communities, nationally sponsored lunch programs, and judicial enforcement of a constitutional "right to food."7
Although international treaties recognize a right to food, few na- tions have established a domestic enforceable right to food.8 And fewer have even begun to implement the international right to food estab- lished in these agreements, such as the International Covenant on Economic, Social, and Cultural Right's (ICESCR) basic obligation of each nation to report its progress in protecting and preserving the right to food.9 Without national legal enforcement mechanisms, an in- ternational right to food fails to serve as an effective tool for combating hunger.10 Like India, some nations have recognized a justiciable right to food as South Africa's post-apartheid constitution provides a right to food and Brazil's recently amended constitution explicitly grants the right to food.11 Applying the Indian, South African, and Brazilian ex- periences with a national right to food, it is clear that Mexico is begin- ning to experience the gradual progression towards a nationally recog- nized right to food.12
This Note compares effective national right to food efforts and identifies essential elements underlying a justiciable national right to food. Part I of this Note provides historical background of the interna- tionally recognized right to food and an overview of national responses to this right. …