A/HRC/28/65
cases to be examined under the Optional Protocol concentrate principally on the territorial
link.9
11.
Victims of violations now have a means of making effective appeals through an
international mechanism, once they have exhausted the grievance mechanisms within their
own countries, or if there is an excessive delay in processing their claims through national
procedures. The Optional Protocol also provides for interim measures for victims in
exceptional circumstances in order to prevent irreparable damage to victims (art. 5).
12.
The Optional Protocol also permits States to declare that they recognize the
competence of the Committee on Economic, Social and Cultural Rights to review interState communications in cases where one State party considers that another State party has
failed to fulfil its obligations under the Covenant. The Committee may also have recourse
to an inquiry procedure whereby it would consider allegations from reliable sources
indicating grave or systematic violations by a State party of any of the rights set forth in the
Covenant.10 While the Covenant does not have a mechanism to enforce decisions, findings
and decisions by the Committee can increase awareness and scrutiny of specific violations
at the international level. An international peer review mechanism such as the universal
periodic review could be employed as a means of highlighting the failure of States to
implement decisions under the Covenant.11
13.
As outlined above, the right to food was once considered a controversial “positive”
right, however recent years have witnessed a paradigm shift in terms of the global discourse
on the right to food, with progress in jurisprudence and academic deliberations affirming
that the right to food is justiciable.12 With the ratification of the Covenant, the right to food
will have greater publicity, especially when NGOs and individuals start to use various
remedies. The right to food is now a right than can be legitimately claimed. Complaint
procedures remind governments of their responsibility to respect, protect and fulfil the right
to adequate food. The Optional Protocol will be influential in ensuring the implementation
of the right to food at the international and national level.
III. Recent framework laws, jurisprudence and the justiciability
of the right to food
14.
The Right to Food Guidelines have done much to raise awareness and increase
recognition of the right to adequate food and nutrition as a human right. They have also
been instrumental in promoting the importance of recognizing the right to food in national
legal frameworks. Guideline 7, in particular, invites States to initiate constitutional or
legislative review to facilitate the progressive realization of the right to adequate food in the
context of national food security. States are also advised to envisage “administrative, quasijudicial and judicial mechanisms to provide adequate, effective and prompt remedies
accessible, in particular, to members of vulnerable groups”.
15.
Constitutional provisions and framework laws can be effective means of promoting
the progressive realization of the right to food at the domestic level. The adoption of
9
10
11
12
Riedel, Giacca and Golay (eds,), Economic, Social and Cultural Rights in International Law (Oxford
University Press, 2014), p. 30.
International NGO Coalition for OP-ICESCR, “A toolkit for action (Booklet 3), Why should States
ratify the Optional Protocol on Economic, Social and Cultural Rights?”, p. 1.
Ibid.
Jose Luis Vivero Pol, “Hunger for Justice in Latin America: the justiciability of social rights in
hungry democracies” (2011).
5
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