Right to Food at a Glance

“Hunger is exclusion. Exclusion from the land, from income, jobs, wages, life and citizenship. When a person gets to the point of not having anything to eat, it is because all the rest has been denied. This is a modern form of exile. It is death in life….” -Josue de Castro[1]

Introduction

Food is any edible, potable or nourishing substance usually comes from animals or plants that is consumed for getting essential nutrients such as carbohydrates, protein, vitamins, minerals, fats etc. for human beings to provide energy, sustain life, promote growth, repair, maintenance of life and health. Food deficiency leads to hunger and malnutrition. “Food means processed, semi-processed or unprocessed element and substance originated from biological source and culturally acceptable for human consumption and raw materials used in its preparation, refinement and production.”[2] Food, for human beings, is much more than a commodity. It is a basic necessity of life, and an integral part of cultural identity and diversity. Its quality and the way people access it are also strongly linked with basic human values such as dignity, freedom and respect.[3] Food is the first and foremost basic need of beings and right to food is a human right.

The right to food implies the right of all human beings to be free from hunger, food insecurity and malnutrition. It is a human right protecting the right for people to feed themselves in dignity. It conveys the sufficient food is available, that the people have the means to access it, and that it adequately meets the individual dietary needs.[4] The right to food is a powerful, meaningful tool that can have a positive impact on the lives of the starving and hungry.[5] Generally, right to food should be understood as the entitlement of all human beings as food consumers to have regular access, directly or by means of procurement, to adequate and sufficient food in terms of its quantity and quality which should also ensure a dignified life of the consumer. Right to food as a human right protects the right of all human beings to live in dignity and guarantees freedom from hunger and access to safe and nutritious food. The right to food gives food security to the human face placing the individual at the center of food security advancement approaches.

Food and Agricultural Organization (FAO) defines, right to food as an inclusive right-not simply a right to minimum ration of calories, proteins and other specific nutrients but right to all nutritional elements that a person needs to live a healthy and active life and to the means to access them. It is important to emphasize on three elements i.e. i) availability ii) accessibility and iii) adequacy of the right to food. The right to food is about how to foster conditions to enable people to care for themselves and their own food needs.

The right to food is not about charity but about ensuring that all people have the capacity to feed themselves with dignified life. The concept of food security has four pillar which emphasizes on the availability, accessibility, utilization and stability of the food and sources of food. The right based approach to food security has a further legal dimension in that governments have a legal obligation progressively to enable all individual within their borders not merely to be free from hunger but to procure, in ways that are fully consistent with their human dignity, food that is adequate for a healthy active life.[6]

The right to food is the right to have regular, permanent and unrestricted access, either directly or by means of financial purchases, to quantitatively and qualitatively adequate and sufficient food corresponding to the cultural traditions of the people to which the consumer belongs, and which ensure a physical and mental, individual and collective, fulfilling and dignified life free of fear. Right to food as a basic human right advocate to have access to safe, nutritious and culturally appropriate food in sufficient quantity and quality without discrimination at all times to sustain a healthy life with full human dignity.

From the legal point of view, right to food is a right for all and serves as a compass to ensure that legal frameworks and strategies are adopted and implemented towards the alleviation of hunger and malnutrition. It is a justifiable, legally enforceable right. It is a human right recognized under national and international law, which protects the right of human beings to access food and feed themselves, either by producing their own food or by buying it. Right to food is defined as assurance of right to food comprising freedom from hunger and adequate living standard guaranteed by the constitution, existing laws and the international treaties, conventions and covenants concerning to human rights to which Nepal is a party.

The right to food does not mean that individuals and groups have a right to be provided food. It means that one has the right to feed oneself in dignity, through economic and other activities. In other words, individuals and groups are responsible for undertaking activities that enable them to have access to food. Nonetheless, the state has an important role to play in supporting these efforts. It states that accesses to food is a constitutional right and guarantee the development of the primary sector to ensure the concrete realization of this fundamental right. The idea of the human right to food is believed to have been begun to establish procedural and legal means for seeking remedies against authorities when they fail to guarantee access to food and it is today a human right recognized under national and international law, which protects the right of human beings to access food and feed them.

The right to food framework includes legally binding obligations for individual states “to respect, protect and fulfill” the right to food for individuals within those states.[7] The right to food does not imply that governments have an obligation to hand out free food to everyone who wants it, or a right to be fed. However, if people are deprived of access to food for reasons beyond their control, for example, if they are in detention, in time of war, natural disasters the right requires the government to provide food directly. Obligation to respect, protect and fulfill are the three state obligations to be fulfilled by the state for protection of right to food.

Respect: State should not take any actions and measures that prevent citizens from existing access to adequate food.

Protect: It requires measures by government to ensure that companies or individuals do not deprive other individuals of their access to adequate food. State is required to protect its citizens from activities of state or non-state actors which violate this right within or outside the state. In the case of Bajuddin Miya  et. al. Vs Office of the Prime Minister et. al.[8] writ petition was filed in the Supreme Court stating claim for compensation on the damage of crops made by the state protected wild animals in the Koshi Tappu Wild Life Reserve of Sunsari District. The court has given directive order to enact law and policy and suitable economic environment to produce food themselves and to achieve easy access to food.

Fulfil: It means that government must pro-actively engage in activities intended to strengthen people’s access to resources that can be used in food production. If an individual or group is unable, for reasons beyond their control, to enjoy the right to adequate food, government must provide access to that right, directly. In the case of Madhav Kumar Basnet Vs Honorable Prime Minister GirijaP.d. Koirala,[9] the court recognized that the government is responsible for supplying food grains to the people in food deficit districts.

Right to food does not mean right to be fed by government but it does not mean that government has no any responsibility to fulfill right to food for its citizens. Government must provide an enabling environment in which people can produce or procure adequate food for themselves and their families to feed by them. In order to purchase food, a person must have access to an income and government must ensure access to social security for those people and families who are not unable to purchase the food. The right to food implies the right to means of production or procurement of food of sufficient quantity and quality, free from adverse substances and culturally acceptable. This right can be fulfilled by an individual’s own efforts or in community with others and must be enjoyed by all without any adverse distinction based on race, religion, sex, language, political opinion or other status.

Therefore, right to food is a concept which entitles every individual as right holders to demand food and the state performs their duty. The right to food is one among several tools to be used by different actors seeking to eradicate hunger and poverty and to provide the right to development for everybody. 

Elements of Right to Food

The following basic elements of right to foods:

1. Availability: Food should be available in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture. The dimension of food availability is about food being present at the household level or at the market place in sufficient quantity, good quality and good nutritional value. Food availability can be achieved through local or domestic production or from regional and international sources through trade or food aid. Provisioning of food for the hungry is not just to ensure that people eat. It is also important to know how much, and what food, people eat – an adequate, balanced and nutritious diet is vital.
2. Accessibility: Access to food is about physical and financial access. Food should be physically and economically accessible as well as affordable in ways that do not interfere with the enjoyment of other human rights. Food must be affordable to all including the physically vulnerable such as disables, children, sick peoples, senior citizens and so on. The affordability of food can be ensured by guaranting minimum wage or social security to meet the cost of nutritious food and other basic needs.
3. Adequacy (Sufficiency): The right to adequate food is defined as “when every man, woman, and child, alone or in a community with others, has physical and economic access, at all times, to adequate food or means for its procurement”. The right to adequate food means the right to feed oneself and the right to social safety nets for those who are unable to do so. Adequacy of food includes complete, safe, and culturally suitable or acceptable food and nutritional needs in terms of quality and quantity.
4. Sustainability: It means ensuring the sustainability of food security. Food should be secure, or accessible, for both present and future generations. The stability dimension is about the sustainability of the food supplies including the availability, access and utilization of the food consumed. Interruption of food supply and access interferes with food utilization and may lead to food insecurity. Sustainability means that food is grown, made available, accessed and used in ways that are environmentally sound and socially acceptable. The right to food is the right to have regular, permanent and unrestricted access, either directly or by means of financial purchases, to quantitatively and qualitatively adequate and sufficient food corresponding to the cultural traditions of the people to which the consumer belongs.

Relation of Right to Food with Other Rights

Human rights are indivisible, absolute, interrelated and interdependent with each other. Right to food as a human right has its linkage with other human rights. Right to food is the base right for every other right because no other rights can be entertained without food. The right to food is a holistic vision integrating other various rights such as right to life, right to freedom, right to equality, right against torture, right to human dignity, right to health, right to education, right to shelter, right to employment, right to property, right to social security, right to reproduction, right to information, right to water, right to land, right against discrimination and so on. Since food is a basic need, the attainment of the right to food is important for people to enjoy all the other rights whether economic or social and is a crucial ingredient of every country’s development.

Right to food is related to right to life because when people are not able to feed themselves they may face the risk of death by starvation. Right to life includes a legal right to food and an entitlement to basic nutritional intake. In the absence of right to food the right to life would be at risk.  Similarly, it is related to right to health as well. Nutrition is a component of both the right to health and the right to food. If a pregnant or breastfeeding woman is denied access to nutritious food, she and her baby can be malnourished even if she receives pre and post-natal care. When people are not able to feed themselves and face the risk of death by starvation, malnutrition or resulting illness, their rights to life would also be at stake.

Likewise, right to food is also associated with the right to education. A hungry and malnourished child is not able to take the education. In the similar manner, to be free from hunger, starvation and malnutrition people need to know how to maintain a nutritious diet and have the capacity to produce or obtain food as a livelihood. Therefore, access to education including vocational education is necessary for entertaining right to food. So, we can say that right to food has its linkage with several other human rights.

International Legal Framework of Right to Food

The right to food is a human right and is a binding obligation well-established under international law. The right to food is recognized and protected in various international laws, Declarations and resolutions they are discussed as below:

1. Universal Declaration of Human Rights, 1948 A.D: The right to food was first recognized at the international level by the United Nations. The Universal Declaration of Human Rights of 1948 A.D., included this provision in Article 25 which states, “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food…” This Article declares the right to food as the basic right or standard of living which is required for the survival of human beings.
2. International Covenant on Economic, Social and Cultural Right (ICESCR), 1976 A.D.

After the UDHR provision of right to food was included in the ICESCR under Article 11(1) which states that, “The states parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food.” Similarly, Article 11(2) of the same Covenant recognizes, “The fundamental right of everyone to be free from hunger”, i.e. the right to at least a nutritional intake ensuring survival.

• International Covenant on Civil and Political Right (ICCPR), 1976 A.D.: ICCPR preserves several rights which is associated and assists for right to food such as Article 6-Right to Life, Article 7-The Right to not be tortured or subjected to inhumane or degrading treatment, Article 10-The Right of detained persons to be treated with humanity and dignity, Article 27-The Right of minorities to their own culture and Article 26-Right to non-discrimination.

1. Convention on the Rights of the Child, 1989 A.D.: Article 27(1) of the CRC, 1989 recognizes, “The right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development.” Moreover, Article 24(2)(c) of the CRC obliges states to combat child malnutrition. This convention goes beyond hunger and addresses the issue of child nutrition.
2. Convention on the Elimination of All Forms of Discrimination Against Women, 1979 A.D.: Article 12(2) of the CEDAW recognizes, “States have to ensure to women adequate nutrition during pregnancy and lactation.”
3. Convention on the Rights of Persons with Disabilities, 2006A.D.: Article 25(f) and Article 28(1) of this convention guaranteed right to food.

Beside the above international instrument there are other several declarations recognize right to food such as Article 1 of The Rome Declaration on World Food Security 1996, Article 54(1)(2) of The Additional Protocol to the Geneva Conventions and Relating to the Protection of Victims of International and Non-International Armed Conflicts, Principle 4 and 8 of the Deceleration of the Right of the Child 1959, Article, 1(7), 1(14) of the Deceleration of Principles of the world Conference on Agrarian Reform and Rural Development 1979, Universal Declaration on the Eradication of Hunger and Malnutrition, International Conference on Nutrition (ICN), World Declaration on Nutrition 1922, Plan of Action of the World Food Summit 1996, Declaration on the Protection of Women and Children in Emergency and Armed Conflicts 1974 and so on.

Incorporation of the Right to Food in Domestic Legislation

In Nepal, the right to food as a constitutionally protected entitlement requiring affirmative government action to ensure its fulfillment, protection, and promotion.

Constitutional Provisions

1. Fundamental Right

The Constitution of Nepal, 2072 B.S. (2015 A.D.) provisioned right to food under the fundamental rights. The special provision of right to food is mentioned in Article 36 of the Constitution of Nepal 2072 B.S. as Right relating to Food, “Every citizen shall have the right relating to food. Every citizen shall have the right to be safe from the state of being in danger of life from the scarcity of food. Every citizen shall have the right to food sovereignty in accordance with law”.[10]

Similarly, Article 44 of the constitution guaranteed the Rights of the Consumer. “Every consumer shall have the right to obtain quality goods and services. A person who has suffered injury from any substandard goods or services shall have the right to obtain compensation in accordance with law”. Likewise, Article 42(2)provisioned that, “The indigent citizens and citizens of the communities on the verge of extinction shall have the right to get special opportunities and benefits in education, health, housing, employment, food and social security for their protection, upliftment, empowerment and development.[11]

Under Article 16 of the Constitution there is provision of Right to live with dignity, Article 17-Right to Freedom, Article 18-Right to Equality, Article 25-Right relating to property, Article 31-Right relating to Education, Article 33-Right to Employment, Article 34-Right to Labor, Article 35-Right relating to Health, Article 38-Rights of Women, Article 39-Rights of Child,  Article, Article 41-Rights of Senior Citizens, Article 43-Right to Social Security. All these rights are also directly or indirectly related with right to food.

1. Directive Principles, Policies and Obligations of the State

Part-4 Article 51(h) of the constitution guaranteed Policies relating to basic needs of Citizens. Article 51(h) (12) is related to the food. It made the provision that, “To provide for sustainable production, supplies, storage, security, and easy and effective distribution of foods by encouraging food production in tune with climate and soil, in consonance with the concept of food sovereignty, while enhancing investment in the agriculture sector”.

• Land Act, 2021 B.S.

“…To divert inactive capital and burden of population from the land to the other sectors of economy in order to accelerate the pace of economic development of the country; to bring about improvement in the standards of living of the actual peasants dependent on the land by making equitable distribution of the cultivable land and by making easily accessible the necessary know-how and resources on agriculture and to keep up the convenience and economic interests of the general public by providing encouragement to make maximum increase in agricultural production…”[12] this act was enacted.

• Right to Food and Food Sovereignty Act, 2075 B.S.

It is expedient to make legal provisions in order to execute the rights of citizens related to food, food security and food sovereignty guaranteed by constitution of Nepal and to establish appropriate mechanism as well as to secure access of citizens in food, the federal parliament made this Act.[13] This Act incorporated several provisions such as starvation prevention  and control, protection of  right to food and food security, protection and promotion of food sovereignty right, provision of food availability, import and distribution system, provision of National Food Council, Regional Food council and local food coordination committee, categories of offence and punishment and so on.

Beside the above mentioned domestic legislations there are other several Acts (laws) which recognize right to food such as, Disable Protection and Welfare Act 2039 B.S., Seed Act 2045 B.S, Pesticide Act 2048 B.S, National Foundation for Upliftment of Aadibasi /Janajati Act, 2058 B.S, Poverty Alleviation Fund Act 2063 B.S, Industrial Enterprise Act 2073 B.S, Labor Act 2074 B.S, Children Act 2075 B.S etc. Similarly, there are numerous policies related to the notion of right to food i.e., National Seed Policy 2056 B.S, National Fertilizer Policy 2058 B.S, National Agricultural Policy 2061 B.S, Irrigation Policy 2060 B.S, Agri Business Promotion Policy 2063 B.S, Agriculture Biodiversity Policy 2063 B.S, Diary Policy 2064 B.S, Poultry Policy 2068 B.S, National Land Use Policy 2069 B.S etc.

Nepalese Experience, Discussion and Analysis

Many people in the developing countries like Nepal live in absolute poverty on the equivalent of less than $ 1 a day. Numerous children are malnourished, and malnutrition is a factor for child deaths annually. Right to food is integrated as a human right in the international instruments and articulated as fundamental as well as legal right in the national laws but there are various experiences and instances of the violations of right to food in Nepal. Marginalized and vulnerable people are seriously suffered due to the violation of right to food in our country.

The Food First Information and Action Network International (FIAN International) and FIAN Nepal are working and advocating for ensuring Right to food in. It has addressed the issue with diverse authorities at the national and international level, but possible solutions have not been implemented. FIAN Nepal has documented several cases of the violations of right to food. Here I present some Nepalese experience and instances of the violations of right to food which is documented by FIAN Nepal.

In the Jarwuta V.D.C. of Surkhet district there is small residence of Gandarba women at the middle of JhupraKhola community forest. They are considered as the marginalized group.  Gandarba women are living in small hut who have age group mainly of 22-45 years. They don’t have their own landless, so they used to collect stone and sand from the Jhupra Khola and they sell the collected stone and sands by carrying it to the market. It takes around 30 minutes to reach in the market from their residence. By this they earn Rs.100 as their wage per day. To run their livelihood is quite difficult by this amount. By carrying wet sand and stone from the cold water the health of women is degrading day by day. The women are suffering from joint pain and uterus falling (patheghar khasne) problems. They used to take rice, fado (food prepared by mixing flour and water) as their meal. Due to the lack of nutritious food the especially the pregnant women are facing severe problem.[14]

Another example is of Kush Bhandiya Community. There is residence of Kush Bhandhiya Community in the Indrapur V.D.C. ward No. 3 Indra village of Banke district. They are considered as marginalized group and are involved in the work of preparing Jato (a kind of local equipment of stone used to make flour of food grains), silauto (stone used to make mixture of spices) and rope of sanpat. They used to sell their products in the market. Sometime their products are sold sometimes not. They have to run sustain their livelihood by the money received by selling their products. Due to the use of modern machines and equipment’s the traditional occupation of Kush Bhandhiya Community is in danger. At the present time they are involved in the occupation of riding Reksha by taking in rent. They pay Rs. 60 as a rent to the Reksha owner. They usually earn 150-200 rupees per day. 8-9 family members are dependent on the earning of a single person. It is quite difficult to fulfill the needs of food to the entire family.[15]

Likewise, there are several Nepalese cases of violation of right to food relating to agriculture and seeds. Many farmers face problem of non-production of crops due to the use of hybrid seeds of food grains. There is a case of Non-production of rice case of Baitadi District. In the joint effort of Food Security Programme of European Union and GTZ seed of paddy was distributed to the farmers of 36 V.D.C. of Baitadi district. But seed was not developed in the paddy and there was no production of paddy in that year. As a result, the farmers were highly suffered. In this case the state does not fulfill its obligation to provide compensation to the victim farmers for the non-production of the paddy due to the inferior and low-quality paddy seeds.[16]

Another case is Non-production of maize case in Bara District. Previously, the famers of Bara district used to cultivate sugarcane. Later with the aim of producing huge agricultural production they were attracted to cultivate the hybrid maize. Some small farmers started to cultivate maize by talking land on rent. They used the seed of maize which was distributed by the Argo vet in collaboration with several Indian and multi-national companies. According to the data of District Agriculture Development Office in the year 2067 B.S. in the whole Bara district the maize was cultivated in 13 thousand 5 hundred hector land. But unfortunately, the maize does not bear the seed and 80% farmers who have cultivated maize were suffered. It creates the problems of starvation in these areas. Similarly, the small farmers who take loans from the banks by mortgage of their land (dhito) were facing severe problem to pay the interest as well as principal amount.[17]

These are the reality problems of Nepal in the area of right to food. The questions arise of who may be responsible to implement both international and national legal instruments for the rights of such marginalized groups. Furthermore, the question is who make the state obliged to implement the right to food and guarantee remedy for the violation of right to food. In all these alarming facts and cases Nepal Government is a violator of right to food because Nepal being the party of international instruments and having laws of right to food and in favor of indigenous people is not being able to fulfill them. State is failed to take responsibility in the line with the commitment under several international laws to fulfill the right to food. The state is not able to

Conclusion

In the guise of a conclusion, we can say that right to food should be understood as the entitlement of all human beings as food consumers to have regular access, directly or by means of procurement, to adequate and sufficient food in terms of its quantity and quality which should also ensure a dignified life of the consumer. The right to food is an inclusive right. It is not simply a right to a minimum ration of calories, proteins and other specific nutrients. It is a right to all nutritional elements that a person needs to live a healthy and active life, and to the means to access them. The primary responsibility in adopting the legislative measures necessary to realize the right to an adequate standard of living, including the right to adequate food, lies with the states. While the right to food is fully recognized legally, its realization is still highly deficient. The human right to freedom from hunger is being persistently and repeatedly violated.

Ensuring food security is a fundamental responsibility of the state as a guardian and watch dog of all the citizens. State should provide or create the favorable environment in which people can use their full potential to produce of procure adequate food for themselves and their families. While discussing about the role of the state to ensure food security, we hereby emphasize the immediate obligation of the state. The state must not deprive any of the people from access to food, the resources for the production of food and the adequacy of food. The state must implement and enforce the notion of human right to food. State not only respect, protect and fulfill people’s access to food but also guarantee remedy in case of violation of right to food.

*Advocate, B.A.LL.B., LL.M. in Commercial Law and Criminal Law at Central Department of Law, Nepal Law Campus, Tribhuvan University.

[1] Former President of the Executive Committee of the Food and Agriculture Organization of the United Nations Executive Committee from 1952 to 1956.

[2] Food Act, Section 2(d), (2075) B.S.

[3] Flavio Luiz Schieck Valente &Ana Maria Suarez Franco, Human Rights and the Struggle Against Hunger: Laws, Institutions, and Instruments in the Fight to Realize the Right to Adequate Food, YALE HUMAN RIGHTS AND DEVELOPMENT JOURNAL, Vol.13, Issue 2, Article 3,  (2014).

[4] MAJ. GEN. NILENDRA KUMAR & KUSH CHATURVEDI, TEXTBOOK ON LAW, POVERTY & DEVELOPMENT, (2^nd ed.), Universal Law Publishing Co. Pvt. Ltd., New Delhi, 29, (2014).

[5] Lauren Birchfield & Jessica Corsi, Between Starvation and Globalization: Realizing the Right to Food in India, MICHIGAN JOURNAL OF INTERNATIONAL LAW, Vol. 31, Issue 4, 764, (2010).

[6] Gyanu Gautam & Krishna Shova Suwal, Right to Food & Role of State to ensure Food Security in Nepal, NELSA LAW JOURNAL SPECIAL ISSUE ON RIGHT TO FOOD, Nepalese Law Student’s Association (NeLSA), Kathmandu, Vol.  1, 8. (2013).

[7] Lisa Guo &David Rojas, The Global Food Crisis, YALE HUMAN RIGHT AND DEVELOPMENT JOURNAL, Vol.13, Issue 2, Article 8, 22, (2014).

[8] Bajuddin Miya et. al. Vs Office of the Prime Minister et. al., NKP 2066 B.S., Vol. 6, D.N. 8169, p.961.

[9] Madhav Kumar Basnet Vs Honorable Prime Minister GirijaP.d. Koirala, SC Bulletin 2054 B.S., Writ No. 3341.

[10] THE CONSTITUTION OF NEPAL, Article 36, (2072).

[11] Id, Article 42(2).

[12] Preamble, Land Act, (2021) B.S.

[13] Preamble, Food Act, (2075) B.S.

[14] KHADYE ADHIKAR HANNAN SAMANDHIT GHATNA DASTABEJIKARANHARUKO SANGALO, FIAN Nepal, Kathmandu, 7, (2012).

[15] Id, 40-42.

[16] Id, 65-66.

[17] Id, 69-70.