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Access to justice and the right to food: the way forward 2015, para. 4
- Paragraph text
- In addition to legally binding treaties, the right to food has also been enunciated in various international standards, the most significant of which are the Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security (Right to Food Guidelines). The Right to Food Guidelines were developed as a practical tool for States to assist them in implementing their obligations at the domestic level under article 11 of the Covenant. The year 2014 marked the tenth anniversary of the guidelines and provided an opportunity to evaluate the impact thereof on national implementation. The present report will highlight some examples of good practice in that regard.
- Body
- Special Rapporteur on the right to food
- Document type
- Special Procedures' report
- Topic(s)
- Food & Nutrition
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 2015
Paragraph
Access to justice and the right to food: the way forward 2015, para. 5
- Paragraph text
- While some critics suggest that the voluntary nature of the Right to Food Guidelines limits their usefulness, they were adopted by member States of the Food and Agriculture Organization (FAO) by consensus. States cannot therefore claim to be unaware of or refuse to comply with the guidelines. Over the years, in many formal settings, the Governments have reiterated their commitment to and support for the guidelines.
- Body
- Special Rapporteur on the right to food
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Food & Nutrition
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2015
Paragraph
Access to justice and the right to food: the way forward 2015, para. 8
- Paragraph text
- The justiciability debate continues to provoke controversy at the international level. However despite strong opposition from a number of States an Optional Protocol to the Covenant, establishing an individual complaints procedure, was finally adopted in 2008. Its subsequent entry into force in May 2013 was hailed as "potentially one of the most important developments in human rights protection at the UN level in a generation".
- Body
- Special Rapporteur on the right to food
- Document type
- Special Procedures' report
- Topic(s)
- Food & Nutrition
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2015
Paragraph
Access to justice and the right to food: the way forward 2015, para. 10
- Paragraph text
- Article 2 of the Optional Protocol requires that authors of communications must be under the jurisdiction of the State party responsible for the violation, and that the State must have ratified both the Covenant and the Optional Protocol. However, the Covenant indicates no restriction to territorial jurisdiction and it will remain to be seen whether the cases to be examined under the Optional Protocol concentrate principally on the territorial link.
- Body
- Special Rapporteur on the right to food
- Document type
- Special Procedures' report
- Topic(s)
- Food & Nutrition
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2015
Paragraph
Access to justice and the right to food: the way forward 2015, para. 16
- Paragraph text
- Over the last few years, there has been an important increase in the number of States that have adopted provisions containing explicit recognition of the right to food or freedom from hunger. The following section will provide an overview of some recent examples of case law in relation to the justiciability of the right to food at the domestic and regional level.
- Body
- Special Rapporteur on the right to food
- Document type
- Special Procedures' report
- Topic(s)
- Food & Nutrition
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2015
Paragraph
Access to justice and the right to food: the way forward 2015, para. 17
- Paragraph text
- Latin America has shown itself to be the region of the world that has made the most progress in terms of developing legal frameworks that promote the right to food. With more than eight countries possessing specific laws aimed at promoting and protecting the right to food and a number of bills pending in National Assemblies for consideration, the right to adequate food is also referred to or explicitly recognized in several constitutions, including those of Brazil, Colombia, Cuba, Ecuador, Guatemala, Haiti, Nicaragua and Paraguay. In some cases, the constitutional provisions refer directly to the right to food, and its applicability to the whole population. In other cases, the right is directed at specific groups, while State signatories of the Covenant provide that it be applied directly through the constitution. The following cases are examples of where the right to food has been used as a legal argument to protect social rights.
- Body
- Special Rapporteur on the right to food
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Food & Nutrition
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2015
Paragraph
Access to justice and the right to food: the way forward 2015, para. 29
- Paragraph text
- Accountability at international, regional and national levels is paramount to ensuring that the right to food and its correlative obligations are being implemented. At the domestic level, it is imperative that constitutional principles and framework laws are established as a means of providing an appropriate institutional structure to ensure the progressive realization of the right to food. In some cases, however, even where States have taken the necessary steps to develop framework laws and policies in order to promote the right to food, a lack of political will has prevented implementation and enforcement of these laws.
- Body
- Special Rapporteur on the right to food
- Document type
- Special Procedures' report
- Topic(s)
- Food & Nutrition
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 2015
Paragraph
Access to justice and the right to food: the way forward 2015, para. 35
- Paragraph text
- The role played by judges also has a significant impact on the judicial interpretation of economic, social and cultural rights. In many countries, it is often the case that judges based outside of urban area have little knowledge of human rights law, and are therefore less inclined to consider international standards when making a judgement. The reliance of the judiciary on the State for its legitimacy and the appointment of judges also has considerable influence over the decision-making process, with historical relations between the State and the judiciary often coming into play.
- Body
- Special Rapporteur on the right to food
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2015
Paragraph
Access to justice and the right to food: the way forward 2015, para. 38
- Paragraph text
- The universality of human rights has been the underlying inspiration for all human rights law and standards. While much emphasis has been placed on achieving the universal acceptance of the content of rights, less attention has been given to attaining universality as to the content of obligations. Economic globalization and the increasing involvement of corporate entities in State affairs have challenged the traditional understanding of territoriality of human rights. The powerful influence of transnational corporations (TNCs) and international financial institutions (IFIs) has led to a marked change in the way in which the principles of territoriality intersect with international human rights standards.
- Body
- Special Rapporteur on the right to food
- Document type
- Special Procedures' report
- Topic(s)
- Food & Nutrition
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2015
Paragraph
Access to justice and the right to food: the way forward 2015, para. 42
- Paragraph text
- In recent years the scope of a State's human rights obligations has progressively evolved to include duties to exercise jurisdiction over activities that are connected to one State but have an impact in another. In principle, corporations can also be held accountable either by States responsible for regulating, monitoring and preventing human rights violations; or through intergovernmental instruments or voluntary codes of conduct.
- Body
- Special Rapporteur on the right to food
- Document type
- Special Procedures' report
- Topic(s)
- Food & Nutrition
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2015
Paragraph
Access to justice and the right to food: the way forward 2015, para. 43
- Paragraph text
- Although international human rights law presupposes the consent of a State to establish an obligation, the evolution of human rights has included the extension of duties under international law directly to non-State actors, including individuals and business enterprises.
- Body
- Special Rapporteur on the right to food
- Document type
- Special Procedures' report
- Topic(s)
- Food & Nutrition
- Governance & Rule of Law
- Health
- Person(s) affected
- N.A.
- Year
- 2015
Paragraph
Access to justice and the right to food: the way forward 2015, para. 45
- Paragraph text
- The majority of extraterritorial cases derive from the host States failure to fulfil its obligation to protect where private companies are impacting upon human rights. While home States of companies operating abroad have an obligation to clearly set out the expectation that such companies respect human rights throughout their operations, it is the host States which have the primary responsibility to prevent human rights violations, including by TNCs operating within its jurisdiction. However, agreements between TNCs and host governments often limit the host State's ability to perform these duties. Indeed some States have even taken retrogressive steps in this regard. A recent study indicates that some jurisdictions have formulated laws that effectively shield business from being held accountable for human rights violation and make it difficult for victims to obtain an effective remedy. In some instances, States themselves may have been complicit in perpetrating violations. In many cases, however, TNCs also impact positively on a country's development, the political relevance of which can significantly influence the judicial process.
- Body
- Special Rapporteur on the right to food
- Document type
- Special Procedures' report
- Topic(s)
- Food & Nutrition
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2015
Paragraph
Access to justice and the right to food: the way forward 2015, para. 46
- Paragraph text
- Implementing national legislation is essential to ensuring that States hold TNCs accountable abroad. Indeed, member countries of the Organisation for Economic Co-operation and Development (OECD) have already made voluntary commitments in this regard by developing a code of conduct. The European Union has also developed a resolution for European corporations operating in developing countries. Under international law, however, States are generally not liable for the conduct of non-State actors, unless the non-State actors are de facto agents of the State, or were acting "on the instructions of, or under the direction or control of, that State in carrying out the [wrongful] conduct". To date, there is no international jurisprudence on the issue of home State accountability for TNC actions.
- Body
- Special Rapporteur on the right to food
- Document type
- Special Procedures' report
- Topic(s)
- Food & Nutrition
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2015
Paragraph
Access to justice and the right to food: the way forward 2015, para. 48
- Paragraph text
- International obligations with extraterritorial dimensions are enunciated in a number of international treaties that emphasize the importance of international cooperation among States to ensure the protection of human rights. At the same time, international human rights instruments refer to how non-State actors have duties to uphold human rights standards. For example, the Universal Declaration of Human Rights states in its preamble - and binding provisions in universal and regional human rights documents also indicate - duties for private actors, while the Guiding Principles on Business and Human Rights (A/HRC/17/31), endorsed by the Human Rights Council in its resolution 17/4 in 2011, elaborate on the responsibility of business enterprises to respect human rights.
- Body
- Special Rapporteur on the right to food
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Food & Nutrition
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2015
Paragraph
Access to justice and the right to food: the way forward 2015, para. 49
- Paragraph text
- Another consideration supporting the necessity of extraterritoriality is the principle of non-discrimination. It is a fundamental part of human rights law, and the logical extension of the universality principle. If States are able to treat individuals in other countries differently from the way they may treat individuals in their own territory, this is discriminatory practice and goes against the principles of universality of rights enjoyment.
- Body
- Special Rapporteur on the right to food
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Food & Nutrition
- Governance & Rule of Law
- Health
- Person(s) affected
- N.A.
- Year
- 2015
Paragraph
Access to justice and the right to food: the way forward 2015, para. 50
- Paragraph text
- The application of extraterritorial obligations is supported indirectly by the International Court of Justice, in its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. The Court observed that: "while the jurisdiction of States is primarily territorial, it may sometimes be exercised outside the national territory". At the regional level the American Convention on Human Rights extends to persons "subject to [the] jurisdiction" of the State party, and the Inter-American Commission on Human Rights held that in relation to the American Convention, "jurisdiction [is] a notion linked to authority and effective control, and not merely to territorial boundaries". The European Court of Human Rights has also indicated that "as an exception to the principle of territoriality, a Contracting State's jurisdiction under article 1 may extend to acts of its authorities which produce effects outside its own territory".
- Body
- Special Rapporteur on the right to food
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2015
Paragraph
Access to justice and the right to food: the way forward 2015, para. 52
- Paragraph text
- There are many relevant domestic court decisions in Brazil, India, Namibia, South Africa and Uganda. Examples can be found also from Australia, Canada and the United Kingdom of Great Britain and Northern Ireland in which TNCs were held responsible under tort law for complicity in human rights violations abroad. In the United States of America, under the Alien Tort Claims Act, TNCs can be held accountable for complicity in the violation of human rights outside of the United States. However, in 2013 the United States Supreme Court in Kiobel v. Royal Dutch Petroleum case created a most significant barrier to accessing judicial remedies for human rights violations that occur in a host State.
- Body
- Special Rapporteur on the right to food
- Document type
- Special Procedures' report
- Topic(s)
- Food & Nutrition
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2015
Paragraph
Access to justice and the right to food: the way forward 2015, para. 53
- Paragraph text
- In the European Union, the notion of extraterritorial jurisdiction is not as problematic when businesses are domiciled in the European Union. The situation in Switzerland is similar. Barriers exist across all jurisdictions, despite differences in legislation, the approaches of courts, human rights protections at the national level and legal traditions. These barriers have been overcome in only some instances and, in those cases, usually as a result of innovative approaches adopted by lawyers, the patience of victims and responses by perceptive judges.
- Body
- Special Rapporteur on the right to food
- Document type
- Special Procedures' report
- Topic(s)
- Food & Nutrition
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2015
Paragraph
Access to justice and the right to food: the way forward 2015, para. 55
- Paragraph text
- In relation to IFIs, private dispute mechanisms have been developed, including the establishment of an ombudsperson for international finance corporations, as have complaint mechanisms, such as the World Bank's International Centre for Settlement of Investment Disputes (ICSID) and the contact point procedure under the OECD Guidelines for Multinational Enterprises. Under these mechanisms ICSID States and private actors are on an equal footing. The flip side is that corporations are in a position to sue governments.
- Body
- Special Rapporteur on the right to food
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2015
Paragraph
Access to justice and the right to food: the way forward 2015, para. 58
- Paragraph text
- In recent years, the human rights violations perpetrated by private actors, including those committed by TNCs, have been subject to several Permanent Peoples' Tribunals. Of particular relevance to the right to food are the tribunals on: Agrochemical Transnational Corporations (2001), Neoliberal Policies and European Transnationals in Latin America and the Caribbean (2008), the Role of Transnationals Corporations in Columbia (2006-2008), and Global Corporations and Human Wrongs (2000). Permanent Peoples' Tribunals are only beneficial in raising public awareness of human rights abuses that otherwise cannot be heard. They offer no legal remedy, but are important politically.
- Body
- Special Rapporteur on the right to food
- Document type
- Special Procedures' report
- Topic(s)
- Food & Nutrition
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2015
Paragraph
Access to justice and the right to food: the way forward 2015, para. 59
- Paragraph text
- United Nations treaty bodies and special procedures have addressed extraterritorial human rights issues in their various reports, including for the universal periodic review and general comments. According to a recent report from the International Network for Economic, Social and Cultural Rights, in the last seven years the various mechanisms of OHCHR have touched upon extraterritorial obligations some 26 times. In so doing, these bodies have played an important role in developing and consolidating an understanding of how to apply the concepts of jurisdiction to the actions and omissions of States. They expressed their concerns and made recommendations on a number of issues addressing extraterritorial obligations, especially on the human rights impact of the exploitation of natural resources in third countries and the role of TNCs in large-scale development projects with respect to forced land evictions, all of which impact directly on the right to food.
- Body
- Special Rapporteur on the right to food
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Food & Nutrition
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 2015
Paragraph
Access to justice and the right to food: the way forward 2015, para. 61
- Paragraph text
- Recent years have witnessed various attempts to regulate the impact of business activities on human rights outside of the territorial boundaries of the home State. Notably the Guiding Principles on Business and Human Rights (2011) underlined that States "should set out clearly the expectation that all business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operations" and clarified the responsibility of TNCs and other business enterprises to respect human rights. Similarly The United Nations Global Compact (2000) urges TNCs to respect workers' rights and human rights; and the OECD Guidelines call on enterprises to respect human rights. In 2011, a group of experts in international law and human rights adopted the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights, which provide that States are responsible for violations of economic, social and cultural rights by non-State actors, including corporations in cases where these non-State actors act under the instructions or direct control of the State, or are empowered by the State to exercise elements of governmental authority.
- Body
- Special Rapporteur on the right to food
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2015
Paragraph
Access to justice and the right to food: the way forward 2015, para. 62
- Paragraph text
- The Guiding Principles are considered the most authoritative statement of the human rights responsibilities of corporations and corresponding State duties adopted at the United Nations level. The Guiding Principles offer a noncommittal voice on extraterritoriality but are rapidly developing and cited in established international standards, such as the revised version of the 2011 OECD Guidelines for Multinational Enterprises and the updated International Finance Corporation Performance Standards; the European Union has also cited the Guiding Principles in its latest Corporate Social Responsibility strategy, and many national governments are recognizing the need to regulate in the area of business and human rights. These rules that place obligations on corporations can develop out of the complex interplay between various States and non-State systems and this multidimensional aspects give them legitimacy.
- Body
- Special Rapporteur on the right to food
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Food & Nutrition
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2015
Paragraph
Access to justice and the right to food: the way forward 2015, para. 63
- Paragraph text
- The OECD guidelines' implementation mechanism, the "National Contact Points", emphasize due diligence responsibility for human rights. There have been more than 100 cases to date, in which different human rights organizations had approached the National Contact Points alleging violations of the guidelines by corporations and thus violations of human rights law. The Maastricht Principles are also an example of progressive development efforts of international law. A range of academic experts and non-governmental organizations endorsed the Maastricht Principles in September 2011, and they have been acknowledged in paragraph 61 of the Guiding Principles on Extreme Poverty and Human Rights, which were adopted by consensus by the Human Rights Council (resolution 21/11) in September 2012.
- Body
- Special Rapporteur on the right to food
- Document type
- Special Procedures' report
- Topic(s)
- Food & Nutrition
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2015
Paragraph
Access to justice and the right to food: the way forward 2015, para. 64
- Paragraph text
- All of these mechanisms have the common of preventing and addressing human rights abuse by business enterprises but fail to provide sufficient monitoring mechanisms. The voluntary nature of soft law instruments is generally not sufficient to protect human rights and thus fails to close the existing "accountability gap" of extraterritorial responsibilities. However, one should not be too quick to rule out categorically the legal applicability of such declarations just because they are of a voluntary nature. Law is not limited to what States set forth. Legal norms can also be formed in society. To treat the concept of law as being entirely dependent on the State is to overlook the unique nature of social norms.
- Body
- Special Rapporteur on the right to food
- Document type
- Special Procedures' report
- Topic(s)
- Food & Nutrition
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 2015
Paragraph
Access to justice and the right to food: the way forward 2015, para. 65
- Paragraph text
- The legally binding nature of voluntary rules may also emerge with the help of national law. Voluntary standards can often be enforced in accordance with competition or consumer laws, where they include relevant representations to the consumer. Thus, a corporation's non-adherence to its own codes can be enforced before courts in the country of the corporation's headquarters.
- Body
- Special Rapporteur on the right to food
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Food & Nutrition
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2015
Paragraph
Access to justice and the right to food: the way forward 2015, para. 67
- Paragraph text
- The question of accountability in relation to TNCs and IFIs is still a grey area in international law. However, there has been significant progress on the part of some States, human rights organizations, and even some TNCs in developing guidelines to ensure the protection of human rights and the environment. Providing a uniformly enforced regulatory framework may actually encourage foreign investment in developing countries by levelling the business playing field for ethical corporations. Some companies have begun to recognize the merits of operating under enforceable standards that apply to all their competitors, rather than voluntary standards that only really influence companies with prominent public profiles.
- Body
- Special Rapporteur on the right to food
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Food & Nutrition
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2015
Paragraph
Access to justice and the right to food: the way forward 2015, para. 68
- Paragraph text
- Following the unanimous adoption of the Guiding Principles on Business and Human Rights in June 2011, the Human Rights Council subsequently called on all Member States in June 2014 to develop national action plans to further the implementation of the Guiding Principles within their respective national contexts. This development followed similar requests to Member States made by the European Union in 2011 and 2012 and Council of Europe in 2014. However, as of 1 December 2014, only six States have developed and published NAPs on business and human rights: Denmark, Italy, the Netherlands, Spain and the United Kingdom. At the same time, a number of other governments have begun the process of developing national action plans on business and human rights or have publicly announced an intention to do so. The Special Rapporteur congratulates those States which have developed plans and encourages others to do so as a matter of priority. In order to encourage more States, business enterprises and civil society actors to engage in the process, the Working Group on Business and Human Rights on 1 December launched its guidance on national action plans.
- Body
- Special Rapporteur on the right to food
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2015
Paragraph
Access to justice and the right to food: the way forward 2015, para. 69
- Paragraph text
- In June 2014, the Human Rights Council decided to establish an open-ended intergovernmental working group with a mandate "to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises" (resolution 26/9). It was decided that the open-ended intergovernmental working group would hold its first session in 2015 "to collect inputs … on possible principles, scope and elements of such an international instrument" and that the Chairperson-Rapporteur of the working group should prepare elements for the draft instrument for substantive negotiations at the commencement of the working group's third session.
- Body
- Special Rapporteur on the right to food
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2015
Paragraph
Access to justice and the right to food: the way forward 2015, para. 70
- Paragraph text
- The Special Rapporteur's predecessor, Olivier De Schutter, in a statement of March 2014 underlined that international human rights law has already gone a long way towards recognizing duties of States to regulate the activities of corporations, and that the negotiation of a new legally binding instrument is one among many alternative ways through which the fight against impunity for human rights violations could be further strengthened. He also suggested that States cooperate with one another in order to ensure that victims are provided with effective remedies in transnational cases. The Special Rapporteur supports the recommendations made by her predecessor and urges States to consider bringing his proposals to the Human Rights Council for further clarification on the States' obligation in relation to non-regulatory means; to identify best practices regarding cooperation between States; and for the adoption of a resolution to draw attention to the Maastricht Principles. The Special Rapporteur recommends that the Human Rights Council establish a mechanism to explore the feasibility of seeking an advisory opinion from the International Court of Justice to determine the legal obligations associated with the extraterritorial implementation of the right to food. The advisory opinion of the Court would itself have no legally binding effect, however, as the highest international court, it has an interpretative authority with respect to particular legal questions. Legal clarification would increase the influence of voluntary regulatory efforts having the goal of reaching legally binding agreements.
- Body
- Special Rapporteur on the right to food
- Document type
- Special Procedures' report
- Topic(s)
- Food & Nutrition
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2015
Paragraph