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Rights Archives: Right to adequate food

Cases No. 19003-2011-00638-Of.1a; No. 19003-2011-00639-Of.2a; No. 19003- 2011-00637-Of.3a; No. 19003-2011- 00641-Of.1

On 03/04/2013 in

Year: 2013 (Date of Decisions (in the order cited above): 3 April 2013; 12 April 2013; 10 May 2013; 31 May 2013)

Forum, Country: Children’s and Juvenile Court; Guatemala

Standards, Rights: Best interests of the child; Core content; Right to adequate food; Right to life; Right to an adequate standard of living; Right to health; Right to housing; Children

Summary Background: The poverty level in the municipality of Camotán in the Guatemalan Department of Chiquimula has chronically been very high and was worsened in 2001 and 2002 as a result of a food crisis, caused by a drought and the effects of a drop in the international price of coffee on the rural economy. The production of coffee was the single most important base for subsistence of the local population. The food crisis generated severe malnutrition and increased child mortality, especially affecting children under 5. Despite the existence of some local government policies to eradicate the famine in the region, the overall situation remained unchanged, which left children of the municipality vulnerable. In November 2011, this led the parents of the girls, Dina Marilú, Mavélita Lucila Interiano Amador and Mayra Amador Raymundo; and the boys Brayan René, Espino Ramírez and Leonel Amador García, supported by the civil society Guatemala Without Hunger Campaign, to file a case in accordance with article 104 of the Law for Integral Protection of Children and Adolescents, which seeks to examine and settle complaints arising from situations that threaten or violate the rights of children and adolescents. The legal proceedings initiated against the State of Guatemala alleged that the State violated through omission the right to food, the rights to life, health, education, and an adequate standard of living and housing, of the children suffering from acute malnutrition in the municipality.

Holding: The Department of Zacapa Court for the Protection of Children and Adolescents and for adolescents in conflict with the criminal law based its legal analysis on national and international law. In particular, the analysis focused on the principle of the best interests of the child as a person with full legal personality, and on the obligation of the State to implement measures and mechanisms to ensure the effective fulfilment of ESC rights.

The Court contemplated the facts in the light of the State’s duties under international instruments, including the ICESCR and the ICRC, to which the State is a party and that guarantee the right to be free from hunger, and the right to adequate food as a fundamental basis for the enjoyment of other human rights [para. C, Análisis de las disposiciones legales correspondientes].

Based on the facts and arguments described above, the Court for Children and Adolescents and the Court for Adolescents in Conflict with Criminal Law of the Department of Zacapa found a violation of the rights to food, life, an adequate standard of living, health and housing of the children parties to the cases and the responsibility of the State of Guatemala for such violations through omission, as it failed to provide effective programs, policies, actions and measures to address the children’s poor health caused by the chronic and acute undernourishment and the lack of adequate food [para. C, Parte resolutiva, I].

In addition, the Court ordered the enforcement of various measures for a comprehensive reparation for the physical, social and psychological damages suffered by the children. These short and longer-term measures included the implementation of policies that guarantee the enjoyment of the right to food, health and adequate housing for the whole family. In particular, the Ministry of Agriculture, Livestock, and Food must deliver food aid to the families of the affected children; and provide seeds and necessary technical support to allow the families to grow adequate food.

In addition, the Court ordered the implementation of various programs such as in the area of health, psychological care and education, which shall enable the development of children in their family environment [para. C, Parte resolutiva, II]

Additional Comments: The expert opinions and reports especially from medical specialists working on child malnutrition, as well as the active support of civil society organizations and a broader social mobilization played a determining role in achieving the decision based on international human rights law standards.

Link to Full Case: https://www.icj.org/guatemala-condenado-porviolaciones-a-derechos-economicos-sociales-yculturales/

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Laxmi Mandal v. Deen Dayal Harinagar Hospital & Ors, W.P.(C) No. 8853 of 2008

On 06/04/2010 in

Year: 2010 (Date of Decision: 6 April, 2010)

Forum, Country: High Court; India

Standards, Rights: Right to life; Right to health; Right to adequate food; Women; Children

Summary Background: This case addressed separate petitions dealing with the violation of the constitutional and reproductive rights of two women below the poverty line who were denied access to adequate maternal care, both during and immediately after their pregnancies. Lack of access to health services resulted in the death of one of the women.

Holding: The Court ruled that there had been a complete and systemic failure on the part of the Government to effectively implement the pre- and post-natal services available under State-sponsored schemes to reduce maternal and infant mortality. This severely affected not just the two women on whose behalf the petitions were brought, but also a large number of women and children placed in similar positions across the country [paras. 1, 2 and 40].

The Court underscored how the petition focused on two inalienable survival rights that form part of the right to life: the right to health (which would include the right to access and receive a minimum standard of treatment and care in public health facilities) and in particular the reproductive rights of the mother. The other right, calling for immediate protection and enforcement in the context of the poor, was the right to food [paras. 2 and 19]. Drawing on international human rights law and national jurisprudence, the Court illustrated how all these rights are interrelated and indivisible. The legal basis on which the Court determined this case and found violations of core constitutional rights was essentially the need to preserve, protect and enforce the different facets of the human right to life protected under article 21 of the Constitution [paras. 19-27].

The judgement considered that the onerous burden on the poor to prove their eligibility for health services, exemplified by the requirement to show a valid ration card to access services, constituted a major barrier for them to access services; and emphasized that the Government had an obligation to create easier access to these essential services and ensure coverage of as much of the target population as possible [para. 48].

The Court declared that: “when it comes to the question of public health, no woman, more so a pregnant woman should be denied the treatment at any stage irrespective of her social and economic background. This is where the inalienable right to health which is so inherent to the right to life gets enforced” [para. 48].

Additional to compensation for the claimants [paras. 55 and 56-61], the Court determined that maternal health schemes themselves needed reform; that access to health services should be available across the State; that clarification be made regarding overlapping provisions and gaps in the various schemes; and that the administration of these schemes be overhauled [para. 62 (i), (ii), (iii), (iv)].

Additional Comments: This case is particularly interesting in relation to the remedies and orders decided by the Court.

Link to Full Case: http://www.escr-net.org/sites/default/files/Mandal_Court_Decision.pdf

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Case of the Sawhoyamaxa Indigenous Community

On 29/03/2006 in

Year: 2006 (Date of Decision: 29 March, 2006)

Forum, Country: Inter-American Court of Human Rights; Paraguay

Standards, Rights: Procedural fairness and due process; Right to life; Right to adequate standard of living; Right to adequate housing; Right to adequate food; Rights to water and sanitation; Indigenous people

Summary Background: The Sawhoyamaxa Community has historically lived in the lands of the Paraguayan Chaco, which since the 1930s have been transferred to private owners and gradually divided. This increased the restrictions for the indigenous population to access their traditional lands, thus bringing about significant changes in the Community’s subsistence activities and finally caused their displacement.

Holding: The Court found various violations of the ACHR, such as of article 8 and 25 (right to a fair trial and judicial protection), article 21 (right to property), article 4(1) (right to life), and article 3 (right to recognition as a Person before the Law), all of them in relation to article 1(1) (the obligation to respect rights) [paras. 112, 144, 178 and 194]. The Court ordered the Paraguayan government to adopt measures for returning the ancestral lands to the Community within three years [para. 215], to provide basic goods and services and implement an emergency communication system until they recovered their land [para. 230]. Moreover, a development fund for the Community in the amount of one million US dollars had to be created [para. 224], compensation in the amount of 20,000 US dollars was to be paid to the families of the 17 persons who died as the result of the forced displacement of the Community [para. 226] as well as for non-pecuniary damages, costs and expenses [para. 239].

Additional Comments: However, in the years following the judgement no progress was made toward the implementation of the judgements and the communities decided to unite their efforts and to ask Amnesty International to help them set up an international campaign designed to put pressure on the government.

The fact that the two communities were in the exact situation and undertook joint actions may have been an important factor in the enforcement process.

Link to Full Case: http://www.corteidh.or.cr/docs/casos/articulos/seriec_146_ing.pdf

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Case of the Yakye Axa Indigenous Community

On 17/06/2005 in

Year: 2005 (Date of Decision: 17 June, 2005)

Forum, Country: Inter-American Court of Human Rights; Paraguay

Standards, Rights: Procedural fairness and due process; Right to life; Right to adequate standard of living; Right to adequate housing; Right to adequate food; Rights to water and sanitation; Right to health; Right to education; Indigenous people

Summary Background: The Yakye Axa community, a Paraguayan indigenous community, has traditionally lived in the lands of the Paraguayan Chaco, large parts of which were sold through the London stock exchange at the end of the 19th century. In 1979, the Anglican Church began a comprehensive development program and fostered resettlement of the indigenous groups to Estancia El Estribo, where the natural environment and resources are different from those of the place of origin of these indigenous groups. While they stayed there, the community lacked adequate access to food and water, health services and education. Sixteen persons died due to these living conditions.

Holding: The Court found that Paraguay had violated various provisions of the American Convention on Human Rights (ACHR) in relation to article 1(1) (the obligation to respect rights), such as the right to a fair trial and judicial protection (article 8 and 25) [para. 119], the right to property (article 21) [para. 156] and the right to life (article 4) [para. 176], since it failed to adopt the necessary positive measures required to ensure the community lived under dignified conditions during the period they had to do without their land [para. 168-169]. The Court considered that Paraguay had failed to adopt adequate measures to ensure its domestic law guaranteed the community’s effective use and enjoyment of their traditional land and concluded that the State had the obligation to adopt positive measures towards a dignified life, particularly when high risk, vulnerable groups that require priority protection were at stake [para. 162]. The Court ordered the State to submit the traditional land to the community at no cost [para. 217], to establish a fund for the purchase of land for the community [para. 218], and to provide basic goods and services necessary for the community to survive as long as the Community remained landless [para. 221].

Moreover, the State was ordered to create a community development fund and a community program for the supply of drinking water and sanitary infrastructure. In addition, the Court ordered the State to allocate 950,000 US dollars to a community development program consisting of the implementation of education, housing, agricultural and health programs [para. 205]. Pecuniary damage had to be compensated and costs and expenses reimbursed within one year [para. 233].

Additional Comments: The Inter-American Court stated that it would supervise enforcement and ordered the State to submit a report on measures adopted within one year after the decision was notified [para. 241].

Link to Full Case: http://www.corteidh.or.cr/docs/casos/articulos/seriec_125_ing.pdf

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