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The Right to Food As a Justiciable Right: Challenges and Strategies

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The Right to Food as a Justiciable Right: Challenges and Strategies Christian Courtis I. Introduction II. The Debate on the Justiciability of ESC Rights and the Right to Food III. Particular Challenges Regarding the Right to Food IV. A Comparative Perspective of the Justiciability of the Right to Food V. Conclusions I. Introduction This article will discuss some of the problems and challenges regarding the consideration of the right to food as a justiciable right – that is, as a right that can be interpreted by the courts and can be the subject of liti- gation. Firstly the debate regarding the justiciability of economic, social and cultural rights will be discussed in general; secondly the focus will shift to some particular issues that arise when the general problem of justiciability is considered in the context of the right to food. Then some of the strategies for advancing justiciability of the right to food that have proved to be successful in different domestic and regional le- gal systems will be presented and discussed. Finally, some summary conclusions from the discussion will be drawn. II. The Debate on the Justiciability of ESC Rights and the Right to Food Is there any role for courts in the full realisation of the right to food? In order to clarify some of the aspects to be taken into consideration, a first attempt to answer this question involves placing it in the broader A. von Bogdandy and R. Wolfrum, (eds.), Max Planck Yearbook of United Nations Law, Volume 11, 2007, p. 317-337. © 2007 Koninklijke Brill N.V. Printed in The Netherlands. 318 Max Planck UNYB 11 (2007) context of the debate on the justiciability of economic, social and cul- tural rights (hereinafter, ESC rights). While ESC rights have been part of the international human rights regime at least since the adoption of the Universal Declaration of Hu- man Rights in 1948, considerably less effort has been made to develop a conceptual framework to give them content and to construct protection mechanisms to enforce them, than in the case of civil and political rights. One of the traditionally neglected issues regarding ESC rights has been their justiciability – that is, the possibility for alleged victims of violations of ESC rights to file a complaint before an impartial body, and request adequate remedies or redress if a violation is deemed to have occurred. There has been – and there still is – a passionate debate regarding the issue of the justiciability of ESC rights: according to some critics, ESC rights are by their nature different from civil and political rights, and are not suitable for judicial adjudication.1 Other voices maintain that differences between civil and political, on the one hand, and ESC rights, on the other hand, are differences of degree and not differences of nature, and that – therefore – nothing prevents ESC rights from being the object of judicial adjudication.2 The central arguments which arise in this debate will not been ex- panded here: it is enough to point out that, according to the present au- thor’s viewpoint, the idea that, due to their specific nature, ESC rights are in toto not suitable subjects for judicial enforcement is a misguided idea, and does not reflect the largely accumulated empirical evidence against it – i.e., an amount of comparative case law in which judges ad- judicate situations of alleged violations of ESC rights. Of course, there are some aspects of ESC rights which may make judicial adjudication more complicated – but, again, these aspects are 1 See, from different points of view, A. Neier, “Social and Economic Rights: A Critique”, Human Rights Brief 13-2 (2006), 1-3; G. Rosenberg, The Hol- low Hope: Can Courts Bring About Social Change?, 1991; C. Tomuschat, “An Optional Protocol for the International Covenant on Economic, So- cial and Cultural Rights?”, in: Weltinnenrecht. Liber amicorum Jost Del- brück, 2005, 815 et seq. 2 See again, from different viewpoints, V. Abramovich/ C. Courtis, Los dere- chos sociales como derechos exigibles, 2nd edition, 2004; R. Alexy, Theorie der Grundrechte, 2nd edition, 1994; COHRE (Centre on Housing Right and Evictions), Litigating Economic, Social and Cultural Rights. Achieve- ments, Challenges and Strategies, 2003; C. Fabre, Social Rights under the Constitution: Government and the Decent Life, 2000. Courtis, The Right to Food as a Justiciable Right: Challenges and Strategies 319 not alien to civil and political rights either, and have never been used to suggest a claim that civil and political rights are not justiciable in toto. To avoid Byzantine discussions, it is enough here to point out the matters that the present author considers to be relevant to the debate about the justiciability of ESC rights. There is no difficulty in recognis- ing that judicial adjudication is not, and cannot be, the main means to fully realise ESC rights. The development and implementation of ser- vices and policies necessary to make these rights a reality are the kinds of tasks that mainly correspond to the political branches of govern- ments, and not to the judiciary. Courts may not even be the best actors to perform the task of monitoring the general results of policies ori- ented to ensure the realisation of ESC rights – a task for which political and especially independent technical bodies are better equipped. The functioning of courts is selective: courts typically deal with nar- rowly defined factual situations, so judicial proceedings are not neces- sarily the best forum to evaluate the empirical indicators, necessary to understand the full picture of variables, which characterise complex public policies in fields such as health, education, social security or housing. This is, however, also true for some obligations stemming from civil and political rights that require for fulfilment legislation and implementation of services, so this is not a decisive argument against justiciability of ESC rights. But those who favour the justiciability of ESC rights do not propose otherwise. The relevant question is not whether litigation and judicial adjudication should be the main means through which ESC rights are advanced, but instead whether litigation and judicial interpretation should play some role – as opposed to no role whatsoever – in this area. Arguments in favour of the justiciability of ESC rights cannot be differ- ent from arguments in favour of the justiciability of human rights in general: that is giving voice to right-holders and offering them forms of reparation in case of a violation, subjecting duty-bearers to control in case of failure to comply with their legal duties, protecting the rights of minorities and disadvantaged groups against biased decisions of the po- litical majority, offering means for the solution of situations of legal un- certainty and of conflicting interpretation of the law and finally – from the viewpoint of the institutional design of constitutional democracies – channelling the idea of mutual control of powers (frequently illustrated 320 Max Planck UNYB 11 (2007) with the image of “checks and balances”) and defending the supremacy either of the constitution or of the law.3 Accepting that there is no insurmountable conceptual difficulty to conceive ESC rights as justiciable rights does not exempt them from meeting – as with any right – a number of pre-requisites, in order to be fit for adjudication. Some of these pre-requisites are: the existence of a clear “rule of adjudication” on the basis of which the legality of a legal norm or a factual situation can be assessed; identification of right- holders and duty-bearers; adequate judicial procedures; and the regular functioning of an independent and impartial judiciary. If these pre- conditions are not met, litigation before courts would hardly be an ef- fective strategy to strengthen ESC rights – it would rather be a sure call for failure. Even if the pre-requisites are met, there are also other strate- gic considerations to be made in order to decide if litigation is the most convenient way to make claims regarding ESC rights. For instance, the length and cost of judicial proceedings, the confrontational character of litigation – which may lead to the interruption of negotiations with po- litical authorities who will, eventually, be in charge of delivering the ser- vices necessary to satisfy ESC rights – , and the compatibility or consis- tency of litigation with other strategies to realising rights advanced by the right-holders. The argument here is that justiciability should be considered as an- other or additional means of enforcement and implementation of ESC rights, as is the case with civil and political rights. Considering that ESC rights should be completely devoid of any kind of judicial protection, and left to the complete discretion of political branches of government, has actually contributed to the considerable devaluation of ESC rights in the legal hierarchy. While courts and litigation should not be seen as the only means for the realisation of ESC rights, the complete absence of any resource to courts of law in relation to these rights clearly downgrades the span of mechanisms available for victims of rights vio- lations, makes state accountability weaker, erodes deterrence and fosters impunity. If the right to food is to be considered a right in a meaningful – and not just in a rhetoric or metaphoric – way, the above considerations should also apply to it. In the next section some consequences of these 3 See, for example, Y. Rabin/ Y. Shany, “The Case for Judicial Review over Social Rights: Israeli Perspectives”, Israel Affairs, forthcoming. Available at <http://ssrn.com/abstract=896289>. Courtis, The Right to Food as a Justiciable Right: Challenges and Strategies 321 general ideas about justiciability of ESC rights in the particular context of the right to food will be discussed. III. Particular Challenges Regarding the Right to Food What shall be explored here are some issues regarding justiciability that are specific for the right to food, and thus may not apply to the same extent to the whole category of ESC rights – even if there could be rele- vant analogies drawn regarding other ESC rights.
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