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Women and the Right to FoodInternational Law

and State Practice


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RighttoFoodStudies

Women and the Right to FoodInternational Law and State Practice

Ib RRight to Food Unit

Food and agRIcultuRe oRganIzatIonoF the unIted natIons

Rome, 2008


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The designations employed and the presentation o material in this inormationproduct do not imply the expression o any opinion whatsoever on the parto the Food and Agriculture Organization o the United Nations (FAO) concerning the

legal or development status o any country, territory, city or area or o its authorities,or concerning the delimitation o its rontiers or boundaries. The mention o specifccompanies or products o manuacturers, whether or not these have been patented, doesnot imply that these have been endorsed or recommended by FAO in preerence toothers o a similar nature that are not mentioned.

ISBN 978-92-5-106176-3

All rights reserved. Reproduction and dissemination o material in this inormation

product or educational or other non-commercial purposes are authorized withoutany prior written permission rom the copyright holders provided the source is ullyacknowledged. Reproduction o material in this inormation product or resale or othercommercial purposes is prohibited without written permission o the copyright holders.Applications or such permission should be addressed to:ChieElectronic Publishing Policy and Support BranchCommunication DivisionFAOViale delle Terme di Caracalla, 00153 Rome, Italyor by e-mail to:

[email protected] FAO 2009


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RighttoFoodStudies

Right to Food Studies is a series o articles and reports on right to ood related issues ocontemporary interest in the areas o policy, legislation, agriculture, ruraldevelopment,biodiversity, environment and natural resource management.

The Food and Agriculture Organization o the United Nations (FAO) would like tothank the Government o Germany or the inancial support provided trough the project:Creating capacity and instruments to implement the right to adequate ood, whichmade the publication o this study.

Right to Food Studies are available at www.fao.org/rightofood. For those without webaccess, mail or paper copies may be requested rom the Right to Food Unit, FAO,

Viale delle Terme di Caracalla 00153, Rome, Italy, [email protected]. Readers areencouraged to send any comments or reactions they may have regarding a Right to FoodStudy.

The positions and opinions presented do not necessarily represent the views o the Foodand Agriculture Organization o the United Nations.

FAO 2008

AbouttheAuthoRoFthiSpApeR:

Ib RLegal Oicer, Right to Food Unit, Agricultural Development Economics Division.


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List of Acronyms 5

Introduction 6

1. Womens Right to Food as a Human Right 8An Overview 8Instruments Protecting Womens Right to Food 8

a) International standards 8b) A close look at CEDAW 12c) National Protection 13

Normative Content o the Right to Adequate Food 14

State Obligations 152. Interrelatedness of Rights 17

The Right to Food and Other Human Rights 17Right to Health 17Right to Education 19Right to Inormation 21Right to Participation 22Access to land 23

3. Implementation and Monitoring 25Incorporation o International Instruments into National Legislation 25Achievements and Shortcomings o Existing Monitoring Mechanisms 26

a) Reporting Obligations 26b) Optional Protocol to CEDAW 27

An analysis o Reports to CEDAW 1994-2003 28a) Structure and Content o Reports 28b) Right holders: Women or Mothers? 29c) Content o the Right to Food: Nutrition, Health and Human Rights 29d) Possible Remedies to Weakness o the Reports: Some Suggestions 30

Conclusions 31

Annex: List of country reports analysed 32


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li f arym

CRC Convention on the Right o the ChildCEDAW Convention on the Elimination o All Forms o Discrimination

Against Women

CERD Convention on the Elimination o Racial Discrimination

FAO Food and Agriculture Organization o the United Nations

ICESCR International Covenant on Economic, Social and Cultural Rights

ICCPR International Covenant on Civil and Political Rights

IHL International Humanitarian Law

ILO International Labour Organization

NGO Non-governmental Organization

SOFI The State o Food Insecurity

UDHR Universal Declaration o Human Rights

UN United Nations

WFS World Food Summit

Women and the Right to Food: International Law and State Practice

Listof Acronyms

intRoduction

1. WomenS Rightto FoodASAhumAn RightS

2. inteRRelAtedneSSoF RightS

3. implementAtionAnd monitoRing

concluSionS


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IriAt the World Food Summit (WFS) in 1996, States set themselves the goal o reducing by

hal the number o people suering rom hunger by the year 2015. In 2000, to eradicateextreme poverty and hunger became number one o the Millennium DevelopmentGoals. Tackling the problems o hunger and malnutrition is, however, not only a policycommitment, but also a legal obligation. The right to ood has been ormally recognisedin several instruments o international law, among which the International Covenant onEconomic, Social and Cultural Rights (ICESCR); the Convention on the Eliminationo All Forms o Discrimination against Women (CEDAW); and the Convention on theRights o the Child (CRC).

In the light o Millennium Development Goals No.1 to eradicate extreme poverty andhunger and No.3 to promote gender equality and empower women the present

study provides a cross-cutting analysis o the right to ood rom a gender perspective,examining relevant international instruments as well as State practice.The study will, irst o all, examine international instruments protecting the right to oodin general, and the right to ood o women in particular. The analysis o these documents

will give an idea o what is todays level o awareness o womens right to ood and relatedissues, how much is covered by law and how much is missing.

The level o incorporation o the above-mentioned instruments into national legislationwill also be looked at, with regard to the eects this has on the implementation process. Insome countries, discrimination is relected in customary law and in others the existenceo a pluralist system challenges womens right to ood. However, even in cases where the

law is comprehensive, and gender equality is established de iure, women continue tosuer rom de facto discrimination: legal equality does not always amount to substantiveequality. 1 In this regard, other related rights will also be examined, as the interaction oallrights may be crucial to the achievement oany. 2

Since CEDAW is the main instrument protecting womens rights, the absence in itstext o a speciic article on the right to ood is an important omission that will be dealt

with, considering the act that the Convention was adopted at a time when the idea othe right to ood as a sel-standing right was well-established in several internationalinstruments. There are, however, articles in the Convention which include ood-relatedprovisions and incorporate the right to ood in other rights. In this regard, the study

1 On equality o rights between men and women - art.3 o ICESCR see CESCR General Comment 16, 2005.2 International Council on Human Rights Policy, Duties sans Frontires Human Rights and Global

Social Justice, 2003, p.12.


liStoF AcRonymS

introduction




concluSionS


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will analyse diiculties arising rom such implicit recognition o the right to ood

and the implication this may have with regard to a correct understanding o the oodproblmatique.

Speciic issues will be looked at: How much o womens hunger and ood insecurity isa matter o health alone and not one o lie, survival and development? How much isdenial o ood or women a matter o violation o mothers rights, or o childrens rightsrather than one o womens rights? How much o ood insecurity and eating disorders isa matter o health and disease, or o violation o human rights?

Some o the above questions are relected in States understanding o this right, whichis evident in the analysis o the reports they submit to CEDAW. In this regard the study

will highlight both the advantages and the limits o the reporting mechanism.In particular, on the basis o a survey o States reports submitted to the Committee onthe Elimination o Discrimination Against Women, ranging rom 1994 to 2003, indingsemerged which brought to light a lack o clarity with regard to the understanding o

womens rights - especially womens right to ood, and also the critical nature o the latterwhere the problem o ood security and the right to ood (an issue which is already criticalper se) assumes a particularly complex dimension since it overlaps with that ogenderdiscrimination. Such analysis aims at highlighting what is possibly the prevailing legalopinion with regard to womens right to ood, in parallel with the reality o violationso such right.


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1.Wm Ri F hm Ri

Anoverview

Across the world, women are treated unequally and less value is placed on their livesbecause o their sex. Womens dierential access to power and control o resources is centralto this discrimination in all institutional spheres, i.e. the household, community, market,and state. Within the household women and girls can ace discrimination in the sharingout o household resources including ood, sometimes leading to higher malnutrition andmortality indicators or women. Because o their lower social and economic status, as wellas their physiological needs, women are oten more vulnerable to nutritional problems.

Poor emale nutrition early in lie reduces learning potential, increases reproductive andmaternal health risks, and lowers productivity. This situation contributes to womens

diminished ability to gain access to other assets later in lie and undermines attemptsto eliminate gender inequalities. In essence, women with poor nutrition are caught ina vicious circle o poverty and under nutrition. Considering the role women have inthe household, with regard to ood production, ood preparation and child care, genderinequality in access to and control o resources may well result in misallocation o scarceresources, increased health care costs, lowered productivity, and poor human developmenttrends. Investment in womens nutrition returns to improving household nutrition andoverall human development capacity or a country. 3

In September 2000, the Millennium Development Goals marked a signiicant steptowards the achievement o undamental human rights by setting 8 priority objectives,

among them: promoting gender equality and empowering women.

instrumentsprotectingwomensrighttofood A) internAtionALstAndArds

Eorts to consider ood as a human right date back to the early years o the UnitedNations (UN). Sensitivity to the problem was visible even prior to the establishment othe UN when, in January 1941, American President Franklin D. Roosevelt, in his Stateo the Union address, since known as the Four Freedoms speech, coined the notion oreedom rom want. Roosevelts vision provided an important basis or the drawing up othe Universal Declaration o Human Rights (UDHR), through which the right to ood

achieved ormal recognition in international law.

3 Ruth OniangO and Edith Mukudi, Nutrition and Gender, in Nutrition a Foundation or Development,Geneva: ACC/SCN, 2002.


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1. womens rightto foodAsAhumAn rights



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Everyone has the right to a standard o living adequate or the health and well-being o

himsel and his amily, including ood. Thus states article 25 o the UDHR, adoptedby the United Nations (UN) General Assembly in 1948. 4 Furthermore everyone isentitled to all the rights and reedoms set orth in this Declaration, without distinction ofany kind, such as race, colour, sex, language, religion, political or other opinion, nationalor social origin, property, birth or other status, says article 2.[emphasis added].

Being a declaration o principles, a so called sot law act, the UDHR does not createbinding obligations. However, it can be argued that the solemn nature and signiicanceo the UDHR, and the broad consensus it received among States, relects a strong desireto respect the principles contained therein. To the extent that such desire was conirmedby the practice o States, the UDHR could be considered customary international law,

containing binding rules or States. 5

Eighteen years ater the UDHR, the ICESCR, to date ratiied by 156 States, marked asigniicant positive step, making the right to ood a rule o binding international law orthe States Parties.

The ICESCR deepened the right to ood concept. Article 11, which can be consideredthe core provision with regard to the right to ood and its protection under internationallaw, conirms .the right to.adequate ood, adding the undamental right oeveryone to be ree rom hunger. Reerring to reedom rom hunger meant that the

4 GA Res.217 A(III),10 December 19485 C. Zangh, Protezione internazionale dei diritti delluomo, in Digesto delle discipline pubblicistiche,

vol. XII, Torino, 1997, p.155.

aRtIcle 11Iri cv emi, si cr Ri

1. The States Parties to the present Covenant recognize the right o everyone to an

adequate standard o living or himsel and his amily, including adequate ood,clothing and housing, and to the continuous improvement o living conditions.

The States Parties will take appropriate steps to ensure the realization o this right,recognizing to this eect the essential importance o international co-operationbased on ree consent.

2. The States Parties to the present Covenant, recognizing the undamental right oeveryone to be ree rom hunger, shall take, individually and through internationalco-operation, the measures, including specifc programmes, which are needed:

(a) To improve methods o production, conservation and distribution o ood bymaking ull use o technical and scientifc knowledge, by disseminating knowledge

o the principles o nutrition and by developing or reorming agrarian systems insuch a way as to achieve the most efcient development and utilization o naturalresources;

(b) Taking into account the problems o both ood-importing and ood-exportingcountries, to ensure an equitable distribution o world ood supplies in relationto need.


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state would commit itsel to ensuring that its people did not starve, at the very least.

In this way, the right to be ree rom hunger was closely related to the right to lie asspelled out or instance in article 3 o the UDHR, article 6 o the International Covenanton Civil and Political Rights (ICCPR) and article 6 o the Convention on the Rights othe Child (CRC).

In article 2.2 The States Parties to the present Covenant undertake to guarantee thatthe rights enunciated in the present Covenant will be exercised without discriminationof any kindas to race, colour, sex, language, religion, political or other opinion, nationalor social origin, property, birth or other status and in article 3 The States Parties tothe present Covenant undertake to ensure the equal right of men and women to theenjoyment o all economic, social and cultural rights set orth in the present Covenant

[emphasis added].Protecting the right to ood or all in a non-discriminatory manner, implies givingparticular attention to women, leading to what is known as positive discrimination/affirmative action. In General Comment 11, the Committee on Economic, Socialand Cultural Rights (CESCR) explains: The adoption o temporary special measuresintended to bring about de facto equality or men and women and or disadvantagedgroups is not a violation o the right to non-discrimination [...], so long as such measuresdo not lead to the maintenance o unequal or separate standards or dierent groups, andprovided they are not continued ater the objectives or which they were taken have beenachieved. The Committee urther stressed the importance o giving particular attention

to the need to prevent discrimination in access to ood or resources or ood. This shouldinclude: guarantees o ull and equal access to economic resources, particularly orwomen, including the right to inheritance and the ownership o land and other property,credit, natural resources and appropriate technology; measures to respect and protect sel-employment and work which provides a remuneration ensuring a decent living or wageearners and their amilies (as stipulated in article 7 (a) (ii) o the Covenant); maintainingregistries on rights in land (including orests) (para. 26).

The Convention on the Rights o the Child (CRC), adopted by the UN in 1989, airms,in article 24: States Parties recognise the right o the child to the enjoyment o thehighest attainable standard o health [...]. States Parties shall pursue ull implementation

o this right and, in particular, shall take appropriate measuresto combat disease andmalnutrition, including within the ramework o primary health care, through, inter alia,the application o readily-available technology and through the provision o adequate,nutritious ood. Furthermore, at article 27: States Parties recognize the right o everychild to a standard o living adequate or the child physical, mental, spiritual, moral andsocial development. This provision recalls the wording o article 25 o the UniversalDeclaration o Human Rights, and o article 11 o the International Covenant onEconomic, Social and Cultural Rights and it spells out States obligations with particularregard to nutrition, clothing and housing.

A particular dimension o the right to ood is that o armed conlict. International

Humanitarian Law (IHL) deals with this issue through provisions in the GenevaConventions o 1949 and their Optional Protocols. Although IHL does not, proclaimthe right to ood as such, it sets out rules to protect access to ood and prohibit denialo ood, as a preventive unction, as well as rules related to humanitarian assistance orthe civilian population. In particular, article 54 o Additional Protocol I regarding the


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protection o objects indispensable or the survival o the civilian population, states:

Starvation o civilians as a method o warare is prohibited....

According to the 1998 Rome Statute o the International Criminal Court, Intentionallyusing starvation o civilians as a method o warare by depriving them o items indispensableto their survival, including wilully impeding relie supplies as provided or under theGeneva Conventions, is a war crime when committed in international armed conlicts.There are ood related provisions in article 55 o the Fourth Geneva Convention, withregard to ensuring ood to the population o occupied territories, and in article 49 relativeto prohibition o displacement which contributes to starvation.

Other relevant provisions can be ound in the Convention Against Torture and Other Cruel,

Inhumane or Degrading Treatment or Punishment (1984), which orbids starvation as aorm o torture; and in the Convention on the Prevention and Punishment o the Crimeo Genocide (1948). Article 2 o the Convention on the Suppression and Punishmento the Crime o Apartheid (1973) reers to the inliction o serious bodily harm and anyorm o torture or degrading treatment or punishment (including intentional starvation) asinhumane acts. The right to ood in this sense becomes also a civil and political right, inaddition to being an economic, social and cultural right.

With particular regard to women, the Declaration on the Protection o Women andChildren in Emergency and Armed Conlicts states, at article 6 : Women and childrenbelonging to the civilian population and inding themselves in circumstances o emergency

and armed conlict in the struggle or peace, sel-determination, national liberation andindependence, or who live in occupied territories, shall not be deprived o shelter, ood,medical aid or other inalienable rights, in accordance with the provisions o the UDHR,the ICCPR, the ICESCR, the Declaration o the Rights o the Child or other instrumentso international law. Other relevant provisions are those in the ILO Conventions - orinstance the Convention (No.111) concerning Discrimination in Respect o Employmentand Occupation, 1958 and the Convention (No.100) concerning Equal Remuneration orMen and Women Workers or Work o Equal Value, 1951 - which i on the one hand donot speciically tackle the right to ood, on the other, they cover issues related to it, such asor instance access to resources.

Gender-speciic provisions have been adopted also in instruments relating to issues suchas environment and sustainable development: the Rio Declaration on Environment andDevelopment, the Johannesburg Declaration on Sustainable Development and the Conventionto Combat Desertiication. Moreover the international community solemnly airmed itscommitment to gender equality and womens empowerment at the Fourth World Conerenceon Women, in September 1995 (Beijing Declaration and Platorm or Action), at the WorldFood Summits in 1996 and 2002. Most recently, womens rights in ood issues have beenreairmed in the Voluntary Guidelines on the Progressive Implementation of the Right to AdequateFood in the context of National Food Security(hereinater Right to Food Guidelines), adopted bythe FAO Council in November 2004.

The document which is voluntary in nature but which at the same time builds oninternational law and provides guidance on implementation o already existing obligations encourages a gender perspective throughout its provisions and stresses equal rights o

women, as well as special protection or pregnant women and mothers.


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Overall, international law appears to provide a substantive legal ramework or the

protection o womens rights and or their right to ood in particular. Surely someprovisions are more developed than others due to a number o actors, historicalcircumstance and geopolitical and social contexts during times o adoption in primis.However, considering the act that de facto protection o womens rights is so weakcompared to deiureprotection, the question arises: Where is the gap? What is missing? Itcould be argued that, in some cases, the law does not make suicient provision to engagestate actors or to empower individuals. International ruling must be ollowed by thenational incorporation o norms, which need to be urther elaborated and implementedaccording to domestic contexts. Eorts should be made at the national level to build thelegal capacity o right-holders to demand that their rights be respected and, at the same

time, to build the capacity o duty-bearers to ulil their obligations.

b) AcLoseLookAtcedAW

The instrument that deals more comprehensively with womens rights is the Conventionon the Elimination o All Forms o Discrimination against Women.

The Convention creates binding legal obligations to pursue by all appropriate meansand without delay, a policy o eliminating discrimination against women. (article 2 )It also constitutes a powerul advocacy and awareness-raising tool to increase womensknowledge o their rights and capacity to claim these rights.

Although the Convention does not speciically reer to the right to ood as such, itprotects womens equal access to land, credit, income and social security or saety nets,

which are all essential elements or the ull realization o the right to ood.

The articles that can be seen as being most related to ood are article 12 and article 14.In article 12: ...States Parties shall ensure to women appropriate services in connectionwith pregnancy, confinement and the post-natal period, granting free services wherenecessary, as well as adequate nutrition during pregnancy and lactation. In article 14.2:States Parties shall take all appropriate measures to eliminate discrimination against

women in rural areas in order to ensure, on a basis o equality o men and women, thatthey participate in and beneit rom rural development and, in particular, shall ensure tosuch women the right: [...] to enjoy adequate living conditions, particularly in relation to

housing, sanitation, electricity and water supply, transport and communications.

These two articles reer to the right to ood in dealing with two particular situations wherewomens vulnerability is high: pregnancy and rural livelihoods. Together with the resto the norms condemning discrimination throughout the Convention, the two articlescan be seen as providing a solid structure or the protection o womens right to ood.However, something is missing. Is that a speciic article on the right to ood? Would thatmake a dierence? Is the gap merely in implementation or could the Convention haveprovided or more? One aspect that could be stressed more in relation to violation o

womens right to ood is cultural ood habits, which in many countries hamper womensenjoyment o the right to ood on an equal ooting with men. We reer to household

contexts where or instance women eat last or others where women are not allowed to eatcertain oods, available only to men.

In this regard, it should be noted that a number o reservations have been made to theConvention by Governments entering it on the grounds o culture and custom, by which


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much o the protection guaranteed by the Convention becomes meaningless. There is,

o course, a need to protect culture and dierences but that should not lead to thepersistence o discrimination, or to violating human rights principles that are universaland overcome any cultural relativism.

It should also be noted that within the context o economic, social and cultural rights,including the right to ood, the obligation o non-discrimination is one o immediateeect and is not, thereore, limited by the provision o progressive realization applied toother obligations under the ICESCR (article 2.2). Furthermore, the right to equalityand non discrimination recognized in UDHR, ICESCR and ICCPR, is consideredin international law as having the character o ius cogens6, status made explicit in theICCPR where at article 4 it is stated that even when the lie o a nation is threatened

by a public emergency, although the parties may take steps derogating rom certainobligations under the Covenant, such measures may not involve discrimination solely onthe grounds o race, colour, sex, language, religion or social origin. 7

c) nAtionALprotection

Quite apart rom international law, a number o national Constitutions today protectthe right to ood, either through direct mention o the right (explicit recognition) or byincluding ood as part o a broader right, such as health or an adequate standard o living,social security or minimum wage (implicit recognition). 8

At the national level, since the adoption o CEDAW, there has been signiicant progressin the recognition and implementation o the human rights o women and the rightto ood. The legal ramework or equality has been strengthened in many countries,ensuring that de iure equality or women is now better established. Constitutions inmany countries include provisions guaranteeing equality on the grounds o sex.Legislation prohibiting discrimination in general and with regard to speciic areas, suchas employment, has become a standard component o regulatory ramework. Manycountries have repealed discriminatory provisions in civil, penal and personal statuscodes to bring them into conormity with the Convention. New laws have been adoptedto create protection and remedies or women. 9

Numerous laws prohibit discrimination and provide or equality o women, and Statesare required to act with due diligence to prevent, investigate and punish discriminationand violence against women committed by the State or private actors. 10 Many countrieshave adopted national plans o action and established institutional machinery to ollow

6 A peremptory norm, a undamental principle o international law considered to have acceptance amongthe international community o states as a whole. Unlike ordinary customary law that has traditionallyrequired consent and allows the alteration o its obligations between states through treaties, peremptorynorms cannot be violated by any state. Under the Vienna Convention on the Law o Treaties, any treatyin violation o a peremptory norm is null and void.

7 On non-discrimination as a norm o ius cogens see Advisory Opinion OC-18/03 o September 17,2003, Requested by the United Mexican States: Legal Status and Rights o Undocumented Migrants,

Inter-Am. Ct. H.R. (Ser. A) No.18 (2003), paragraph 1.8 Margret Vidar, Recognition o the Right to Food at the National Level, FAO 2004, IGWG RTFG INF/29 CEDAW, Statement delivered on the occasion o the 25th Anniversary on the adoption o CEDAW, 14

October 2004.10 CEDAW, General Recommendation No 19 para 9.


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11 Lorenzo Cotula, Gender and the Law: Womens Rights in Agriculture, FAO, Rome, 2002, p.3. 12 UN,Right to Adequate Food as a Human Right, in Human Rights Study Series 1, New York,1989, fnal report o Asbjrn Eide, Special Rapporteur on the right to adequate ood o the UNSub-Commission on Prevention o Discrimination and Protection o Minorities (E/CN.4 Sub.2/1987/23). Mr Eide updated his study in 1999 at the request o the Sub-Commission, UN, Sub-Commission on the Promotion and Protection o Human Rights. Updated study on the right toood, submitted by Mr. Asbjrn Eide, UN Document No E/CN.4/Sub.2/1999/12, 28 June 1999.

12 UN, Right to Adequate Food as a Human Right, in Human Rights Study Series 1, New York, 1989, fnalreport o Asbjrn Eide, Special Rapporteur on the right to adequate ood o the UN Sub-Commissionon Prevention o Discrimination and Protection o Minorities (E/CN.4/Sub.2/1987/23). Mr Eideupdated his study in 1999 at the request o the Sub-Commission, UN, Sub-Commission on thePromotion and Protection o Human Rights. Updated study on the right to ood, submitted by Mr.Asbjrn Eide, UN Document No E/CN.4/Sub.2/1999/12, 28 June 1999.

up the Beijing Platorm or Action. More generally, legislative reorms have brought about

changes in amily law (towards equality between spouses and ull legal capacity o marriedwomen) in succession law (toward joint titling and the elimination o discriminatorynorms in relation to access to land in agrarian reorm programmes).

In some cases, discrimination has been prohibited with speciic regard to access tocredit and to the exercise o sel employment economic activities. Moreover, womenslegal status has been improved by judicial decisions declaring the unconstitutionality odiscriminatory norms. However, in many countries the implementation o legislationprotecting womens rights is constrained by entrenched cultural practices, lack olegal awareness, limited access to courts and lack o resources. These implementationproblems are generally stronger in rural areas. In these cases, eective interventions to

improve womens legal status need to include not only legislative reorm but also steps tobridge the gap between law and practice. Oten, socio-cultural practices have aected theapplication o statutory legislation. 11

In some countries, discrimination is relected in customary law and in others the existenceo a pluralist system challenges womens right to ood. However, even in cases where thelaw is comprehensive, and gender equality is established de iure, women continue tosuer rom de facto discrimination: legal equality does not always amount to substantiveequality.

normAtivecontentoftherighttoAdequAtefoodThere has been considerable progress in understanding the meaning o the right to ood,in developments that started in the 1980s and accelerated in the ollow-up to the WFSo 1996, which called or the clariication o the right to ood in Objective 7.4 o thePlan o Action. The seminal work o Mr Asbjrn Eide as Special Rapporteur o the Sub-Commission on the Prevention o Discrimination and Protection o Minorities in the1980s had a positive inluence but, given the global geopolitics, was perhaps somewhatbeore its time. 12

In the ollow-up to the WFS, the human rights community and FAO cooperated in

achieving better understanding o the right to ood and considering better ways oimplementing it. Eorts to clariy the right to ood culminated in the adoption by theCommittee on Economic, Social and Cultural Rights o General Comment 12, which isgenerally considered to constitute an authoritative interpretation o article 11 o ICESCR.


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General Comment 12 airms that the right to adequate ood is indivisibly linked to the

inherent dignity o the human person and is indispensable or the ulilment o otherhuman rights.

According to General Comment 12, the realization o the right to adequate ood requires:the availability o ood in a quantity and quality suicient to satisy the dietary needs oindividuals, ree rom adverse substances, and acceptable within a given culture; and theaccessibility o such ood in ways that are sustainable and that do not interere with theenjoyment o other human rights (para 8). By accessibility the CESCR reers to botheconomic and physical accessibility. The ormer relates to inancial costs associated withthe acquisition o ood which should be such that the attainment and satisaction o otherbasic needs are not threatened or compromised. The latter reers to ood being physically

accessible to everyone, including vulnerable people (para 13). General Comment 12 alsoprovides guidance as to the implementation o the right to adequate ood, looking intoStates obligations. This particular aspect will be dealt with in the next section.

The Special Rapporteur on the Right to Food 13 elaborated on this deinition andstated: The right to ood is the right to have regular, permanent and ree access, eitherdirectly or by means o inancial purchases, to quantitatively and qualitatively adequateand suicient ood corresponding to the cultural traditions o the people to which theconsumer belongs, and which ensures a physical and mental, individual and collective,ulilling and digniied lie ree o ear. 14

stAteobLigAtions

Considering that States alone are Parties to the ICESCR, they are ultimately accountableor compliance with it and primarily responsible or the ull realization o the right toood or all persons within their territory.Under international law, States have both progressive and immediate obligations to realizethe rights contained in the Covenant. Under the terms o the ICESCR, Each State Partyto the present Covenant undertakes to take steps, individually and through internationalassistance and co-operation, especially economic and technical, to the maximum o itsavailable resources, with a view to achieving progressively the ull realization o the rights

recognized in the present Covenant by all appropriate means, including particularly theadoption o legislative measures (article 2.1).

13 The Commission on Human Rights nominated in 2001 a Special Rapporteur on the Right to Food,Mr

Jan Ziegler, with the ollowing mandate:(a) To seek, receive and respond to inormation on all aspects o the realization o the right to ood,

including the urgent necessity o eradicating hunger;(b) To establish cooperation with Governments, intergovernmental organizations, in particular the

Food and Agriculture Organization o the United Nations, and non-governmental organizations, onthe promotion and eective implementation o the right to ood, and to make appropriate

recommendations on the realization thereo, taking into consideration the work already done in thisfeld throughout the United Nations system;(c) To identiy emerging issues related to the right to ood worldwide.

14 Commission on Human Rights, Report o the Special Rapporteur on the Right to Food, Jan Ziegler,submitted in accordance with Commission on Human Rights resolution 200/10, February 2001, UNdoc E/CN.4/2001/53.


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15 CESCR, General Comment 3 The nature o States parties obligations (art.2.1 o the Covenant), 1990.16 Such categorization or the right to ood was originally introduced by Asbjorn Eide in: Eide, Bart Eide,

Goonatilake, Gussov and Omawale, Food as a Human Right, Tokyo: UNU, 1984.

The emphasis on progressive realization is due to the multiaceted nature o economic,

social and cultural rights and to resource constraints. However steps towards achievingthe ull realization o these rights must be taken within reasonable time and should bedeliberate, concrete and targeted.

Regarding the way in which to achieve results, States have a margin o discretion indeciding on the most appropriate measures under given circumstances. States should takesteps to the maximum o available resources, meaning that where resources are available,they should be used to enable people to exercise their rights, and not get diverted to otherields. 15

Furthermore, article 11.2 describes speciic obligations pertaining particularly to the

right to ood: rom improving methods o production, conservation and distribution todissemination o knowledge and reorming the agrarian system. It should be noted thatunder this provision States must not only work towards the realization o the right toood, but also guarantee the undamental right to be ree rom hunger the only rightqualiied as undamental in the Covenant. This particular right guarantees protectionagainst starvation at the very least, and is in this sense interpreted as reerring to theminimum essential or peoples survival.

States obligation to ensure the right to reedom rom hunger is o immediate eect andthus not subject to the condition o progressive realization.

General Comment 12 urther examined the obligations emanating rom the Covenant

and in particular identiied three types o obligations: to respect, protect and ulil(acilitate and provide). 16 In the light o womens right to ood, which is the subject othis paper, the obligation to respect the right to ood means that the State is obliged torerain rom doing anything that impedes womens existing access to ood, water, land,income or other resources.

The obligation to protect the right to ood or women means that the State is obligedto protect women rom all orms o discrimination by non-State actors, includingdiscrimination in the workplace, in the private sphere, and in access to resources.The obligation to ulil the right to ood or women means that Governments havea positive obligation to create an enabling environment to ensure that women have

suicient access to resources to be able to eed themselves and, as a inal resort, to supportwomen who, or reasons beyond their control, cannot eed themselves.This positive obligation means that the State must take concrete positive action to improvethe substantive equality o women and to challenge norms, traditions and customarylaws that legitimate discrimination and violence against women, including within theamily and within the household, particularly in relation to the allocation o ood.


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liStoF AcRonymS

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2. interreLAtednessof rights


concluSionS

2. Irr f RitherighttofoodAndotherhumAnrights

All human rights are universal, indivisible, interdependent and interrelated. Thusstates the Vienna Declaration adopted at the World Conerence on Human Rights in1993.In looking at womens human right to adequate ood, other related rights need to be takeninto consideration since the interaction o all rights may be crucial to the achievement oany. 17 The ull realization o the right to ood thereore depends on parallel achievementsin the ield o health, education, and access to resources. Although each right is worthyo achievement in itsel, each has an instrumental value in that dierent types o rightsreinorce each other, and respect or one category may be essential to achieving another.I, on the one hand, the right to ood is essential or the realization o other rights - the

right to lie in primis, on the other hand other rights are essential or the realization othe right to ood. 18

This study will now look at what we will call ood-related rights, their content, theirinterrelationship with the right to ood, and at how implementation o one may aectthe other.

righttoheALth

The right to health is ormulated in article 12 o ICESCR as: the right o everyone tothe enjoyment o the highest attainable standard o physical and mental health. Other

international and regional instruments have recognised this undamental right, amongthem: article 25 UDHR; article 5(e) (iv) Convention on the Elimination o RacialDiscrimination (CERD); article 24 CRC; article 11 o the European Social Charter;article 16 o the Arican Charter o Human and Peoples Rights and article 10 o the

Additional Protocol to the American Convention on Human Rights in the Area oEconomic, Social and Cultural Rights.

The right to health is not to be interpreted as merely a right to be healthy or to healthcare, it embraces a wide range o socio-economic actors that promote conditions in whichpeople can lead a healthy lie, and extends to the underlying determinants o health, such

17 International Council on Human Rights Policy, Duties sans Frontires Human Rights and GlobalSocial Justice. , 2003, p.12.

18 Margret Vidar, The Interrelationships between the Right to Food and Other Human Rights, in WencheBart Eide and Uwe Kracht (eds.), Food and Human Rights in Development, Vol. I Legal and InstitutionalDimensions and Selected Topics, Intersentia, 2005, Chapter VI, p.141.


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as ood and nutrition, housing, access to sae and potable water and adequate sanitation,

sae and healthy working conditions, and a healthy environment.

Particularly in terms o access, women have dierent and unequal access to and use obasic health resources, including primary health services or the prevention and treatmento diseases, and malnutrition. They also have dierent and unequal opportunitiesor the protection, promotion and maintenance o their health Womens health and

well-being is determined by the social, political and economic context o their lives,as well as by biology. Lack o ood and inequitable distribution o ood or girls and

women in the household, inadequate access to sae water, sanitation acilities and uelsupplies, particularly in rural and poor urban areas, and deicient housing conditions, alloverburden women and their amilies and have a negative eect on their health. Good

health is essential to achieving the right to ood, to leading a productive and ulilling lieand is basic or womens empowerment.

With regard to womens health, CEDAW covers it in two provisions. Article 11.1 reads:States Parties shall take all appropriate measures to eliminate discrimination againstwomen in the field of employment in order to ensure, on a basis of equality of menand women, the same rights, in particular:..... (f ) The right to protection of healthand to safety in working conditions, including the safeguarding of the function of reproduction.

Article 12. reads: 1. States Parties shall take all appropriate measures to eliminatediscrimination against women in the field of health care in order to ensure, on a basis

of equality of men and women, access to health care services, including those relatedto family planning. 2. Notwithstanding the provisions of paragraph I of this article,States Parties shall ensure to women appropriate services in connection with pregnancy,confinement and the post-natal period, granting free services where necessary, as well asadequate nutrition during pregnancy and lactation. While art.11.1 reers particularlyto the ield o employment, article 12 provides a broader coverage o the right to health

with urther emphasis on reproductive health.

The right to ood is particularly related to the right to health. On the one hand, enjoyingthe right to ood is an essential condition to be healthy. Food that is not adequate,meaning nutritionally adequate and ree rom adverse substances, can severely aect

ones health. An adequate nutrition helps in improving immunological integrity andpreventing non-communicable diseases such as, or instance, diabetes. On the otherhand, health itsel is a pre-condition or the realization o the right to ood. Sickness,disease (i.e. HV/AIDS) or malnutrition can aect ones ability to use the ood one eats,to work, to access the resources she needs, and, more generally, to lead a healthy lie.

Protection o women against discrimination in health care and nutrition is stressed in theRight to Food Guidelines, according to which States should adopt measures to eradicateany kind o discriminatory practices, especially with respect to gender, in order to achieveadequate levels o nutrition within the household(Guideline 10.8).

The right to ood, quite apart rom being a sel standing right, is also a means or achievingood security or all and individual nutritional well-being through her entire lie cycle.

19 UN GA, The Right to Food, Report o the Special Rapporteur, 2003, p.7. UN doc A/58/330.


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20 UN, Administrative Committee on Coordination Subcommittee on Nutrition (ACC/SCN) 4th Reporton the World Nutrition Situation: Nutrition Throughout the Lie Cycle, Geneva 2000.

Since women play a vital role in ood security, it is widely recognised that the health o

women is crucial or the health o whole societies. 19 Underweight and malnourishedmothers are more likely to give birth to underweight babies, whose mental and physicalcapacities may be severely stunted. They may grow into malnourished adults aecting inthis sense the ood/health status o uture generations (the ability to work, to participatein development) and, in economic terms, contributing to the perpetuation o poverty.This intergenerational link in nutritional status is what is called the lie-cycle approachto nutrition which is now widely part o the thinking in this subject. 20

In order to break this vicious circle, and to enhance womens right to ood and to health,there is a need to increase womens access throughout the lie cycle to appropriate,aordable and quality health care, inormation and related services; to remove all barriers

interering with access to health acilities, services, shelter, housing, sanitation, potablewater; encouraging breasteeding and healthy ood habits; to strengthen preventiveprogrammes that promote womens health; undertake gender-sensitive initiatives thataddress sexually-transmitted disease, HIV/AIDS, and sexual and reproductive healthissues; and promote research and disseminate inormation on womens health. It isundamental to invest in girls nutrition and health so as to help advance the statuso women. In General Comment 14 on the Right to Health (2000), the Committeerecommended States to integrate a gender perspective in their health-related policies,

planning, programmes and research in order to promote better health for both womenand men. A gender-based approach recognizes that biological and socio-cultural factors

play a significant role in influencing the health of men and women. The desegregation ofhealth and socio-economic data according to sex is essential for identifying and remedyinginequalities in health.

righttoeducAtion

Another cross-cutting dimension o the right to ood is education. As the Committee onEconomic, Social and Cultural Rights points out in General Comment 13, Education isboth a human right in itsel and an indispensable means o realizing other human rights.The Committee calls this an empowerment right and in this sense education is theprimary vehicle by which economically and socially marginalized adults and children canlit themselves out o poverty and obtain the means to participate ully in the economic,social and political lie o their society.

The Committee highlights the vital role this undamental right has in empoweringwomen. Education enhances a womans potential, and contributes to improvements inhealth, nutrition and well-being or women and their amilies.

International law deals with this undamental right on several occasions.Starting o with the ICESCR, at article 13 we read: 1. The States Parties to the presentCovenant recognize the right o everyone to education. They agree that education shall

be directed to thefull development of the human personalityand the sense o its dignity,and shall strengthen the respect or human rights and undamental reedoms.


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They urther agree that education shall enable all persons to participate eectively in

a ree society, promote understanding, tolerance and riendship among all nations andall racial, ethnic or religious groups, and urther the activities o the United Nationsor the maintenance o peace. [emphasis added] This includes compulsory and reeprimary education or all, general availability o and access to secondary educationincluding technical and proessional education, and higher education with theprogressive introduction o ree education and liberty or parents to choose schools ortheir children. With regard to these, the Committee in General Comment 3 placed theright to education among those rights which would seem to be capable o immediateapplication by judicial and other organs in many national legal systems. Furthermorethe Convention on the Rights o the Child recognizes or every child a right to education

(article 28) to be achieved progressively and on the basis o equal opportunity.Similarly to ICESCR provisions, article 28 provides or availability o primary andcompulsory education, the development o dierent orms o secondary educationincluding vocational and proessional education, access to higher education, encouragemento school attendance and international cooperation with a view to contributing to theelimination o ignorance and illiteracy.

With particular regard to women, CEDAW deals with the issue in article 10: StatesParties shall take all appropriate measures to eliminate discrimination against women inorder to ensure to them equal rights with men in the ield o education and in particularto ensure, on a basis o equality o men and women.

Measures include providing or: the same conditions or career and vocational guidance;access to same curricula, same standard and school premises; an education that canhelp to eliminate any stereotyped concept o the roles o men and women and genderdiscrimination; same opportunities to beneit rom scholarships and or accessingprogrammes o continuing education; reduction o emale student drop out rates, sameopportunities to participate in sports and physical education and access to speciiceducational inormation to help ensure the health and well-being o amilies, includinginormation and advice on amily planning.Most recently, the Millennium Development Goals touched upon this issue byestablishing as Goal no 2 to: achieve universal primary education.

Education is development, it is empowerment, and it creates choices and opportunitiesor people opening doors to economic and social prosperity. Finally, Guideline 8.8 o theRight to Food Guidelines should be mentioned. In dealing with Labour market it states:In order to improve access to the labour market, States should enhance human capitalthrough education programmes, adult literacy and additional training programmes, asrequired, regardless o race, colour, gender, language, religion, political opinion, nationalor social origin, property, birth or other status.

Despite international recognition, 100 million children, at least 60% o them girls,do not have access to primary education. 21 Nine hundred million adults in the worldare illiterate, and more than two thirds o them are women. Discrimination against

women at all levels o education represents a tremendous obstacle to their advancement.Illiteracy and lack o education reduces productivity and earning capacity and increases

21 Malini Sur, Womens Right to Education A Narrative on International Law, in Indian Journal oGender Studies, 2004, Vol 11, No 3, p.1.


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22 CESCR, The Right to Food, Report on the Third Expert Consultation on the Right to Food, UN docA/CN.4/2001/148

23 FAO, The State o Food Insecurity in the World 2004: Monitoring Progress towards the WorldFood Summit and Millennium Development Goals, Rome 2004,p.28.

24 See or instance art 19 UDHR, art 5(d)(viii)CERD, arts 13 and 17 CRC and art 9 ACHPR.25 Amartya Sen, Poverty and Famine: An Essay on Entitlement and Deprivation, Oxord University Press,

Oxord, 1981.

vulnerability to hunger and extreme poverty. In this sense education plays an important

role in the achievement o the right to ood. Improving education means eeding bothminds and bodies, it means making people aware and in control o their choices.It means enabling people to understand which oods are healthy and how to handle themcorrectly, it means learning about conservation and preparation o ood, promoting oodsaety, quality nutrition, healthy ood habits, and discarding ood traditions that areagainst human rights especially with regard to womens roles in the household. On theother hand, the right to ood is also relevant towards achieving education: malnourishedchildren do not develop the ability to concentrate and learn. Again there is a need or anintegrated approach.

Investing in education means investing in the intellectual potential o people, which is

at the basis o development. Education and inormation on nutrition, on the one hand,and on the right to ood, on the other, should be intensiied.

According to the CESCR, knowledge o the scope and content o the right shouldbe enhanced among civil society, national human rights institutions, human rightscommissions, parliamentarians, judges, advocates, educators, and administrators bydrawing extensively on General Comment 12. 22

According to the State o Food Insecurity in the World (SOFI) 2004 improving educationcan be one o the most eective ways to reduce hunger and malnutrition. Malnutritionrates decline with increased literacy, especially emale literacy. 23Education is also undamental, the Report says, or the ight against HIV/AIDS.

Education should be a priority or Governments and special attention should be given togirls and women in rural areas.

righttoinformAtion

Everyone shall have the right to reedom o expression; this right shall include reedomto seek, receive and impart inormation... So states article 19(2) o the ICCPR. Freedomo opinion and inormation are one o the most undamental reedoms guaranteed inany democratic system. These so-called political reedoms are provided or in severalinternational and regional instruments 24 and represent an important dimension also or

economic and social rights, including the right to ood.Every individual has a right to seek and receive inormation which must be guaranteedby the State through, inter alia, the introduction o new legislation on the basis o theprinciple o maximum disclosure.

With particular regard to the right to ood, the right to reedom o expression plays twoimportant unctions. First o all, in more general terms by enhancing democracy in acountry, that country is less likely to suer amine. 25 Already in 1946 the UN General

Assembly had airmed, in Resolution 59(I): reedom o inormation is a undamental


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2226 IFPRI, Sustainable Food Security or all by 2020, Panel discussion September 2001, Bonn, Summary

note, Empowering Low-Income Women or Enhanced Food Security in Sub-Saharan Arica.

human right and the touch-stone o all the reedoms to which the United Nations is

consecrated. Democracy means reedom o the press, publicity o inormation, andtransparent and accountable government, all contributing to the ight against povertyand hunger. Freedom o inormation is undamental or women as one o the essentialelements o their empowerment and their ull participation in development as agents andnot mere beneiciaries.

Secondly, rom a practical standpoint, inormation is crucial or ood security. It enablesindividuals to receive inormation on ood and nutrition, on markets, and on allocation oresources. It enhances peoples participation and ree consumer choice. According to theRight to Food Guidelines, States should collect and disseminate inormation to the publicregarding ood-borne diseases and ood saety matters, and should cooperate with regional

and international organizations addressing ood saety issues. (Guidelines 9.6) and adoptmeasures to protect consumers rom deception and misrepresentation in the packaging,labelling, advertising and sale o ood and acilitate consumers choice by ensuring appropriateinormation on marketed ood, and provide recourse or any harm caused by unsae oradulterated ood, including ood oered by street sellers. (Guideline 9.7).

With particular regard to women, market inormation oten remains restricted to theliterate as well as more urban-based women. Because o persistent low levels o literacyamong low income women, inormation regarding arming and particularly ood securitydoes not readily reach women armers. Besides, most o the inormation packaging anddissemination channels are unsuitable or them. Considering the particular role women

play in household ood security, their accessing related inormation is crucial. Ruralwomens groups and associations need to be strengthened in the bid to realize moresustainable ood security. There is a need or ocused training, and extension delivery to

women groups will largely improve access to agricultural knowledge and inormationamong arming women and communities. 26

righttopArticipAtion

The right to participation is spelled out in article 25 o the ICCPR, according to whichevery citizen shall have the right and the opportunity, without any discrimination, to take

part in the conduct o public aairs, directly or through reely chosen representatives; tovote and to be elected at genuine periodic elections and to have access, on general termso equality, to public services in her country.

Participation o beneiciaries in programmes and projects that eect them is a generalprinciple o development, as well as being one o the key components o a human rightsbased approach to development and emergency assistance. Participation is essential ina democracy, or people to be ree to choose their government and to take part in theormulation o policies. With particular regard to ood it is o paramount importance toinvolve local communities in the design and implementation o ood security programmesso as not to miss out on the real needs o populations.

According to the Right to Food Guidelines, ull and transparent, social and political,


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participation o the groups that are most aected by ood insecurity is essential to a rights

based approach. States should promote the participation o the poor in economic policydecisions (Guideline 2.6) and promote womens ull and equal participation in theeconomy (Guideline 8.6). Particularly, in developing poverty reduction strategies, Statesare encouraged to consult with civil society organizations and other key stakeholders atnational and regional levels, including small-scale and traditional armers, the privatesector, women and youth associations, with the aim o promoting their active participationin all aspects o agricultural and ood production strategies (Guideline 3.8).

Women are oten excluded rom decision making processes in local governments,whereas their participation is crucial, given their primary role in household ood security.Women should take part in any process or programme aimed at devising and developing

methods, policies and strategies that help to empower women in osetting barriers totheir ull exercise o rights. It is necessary thereore to enhance womens participationin programmes and projects, as contributors and beneiciaries, and to put particularemphasis on the integration o womens activities in all development activities, on anequal basis with those o men. This will help to better assess womens demands andneeds, thus mainstreaming gender sensitivity in all aspects o ood security planning.

AccesstoLAnd27

Access to land is a crucial issue when dealing with the right to ood. Land as well as

other natural resources - such as, or instance, water and trees - is essential or peopleslivelihoods; it is a primary source o wealth, social status and power. Gender is an issue

with regard to accessing land since women oten get marginalized in land-related policies.Their needs are not cared or in cases o land reorm or land administration projects; theyare excluded rom beneits and do not exercise rights, such as property rights, on an equalbasis with men.Land is not deined in international law as a human right per se; , however severalinstruments cover aspects that are relevant to land, either directly or indirectly, such asor instance issues o ownership, management and administration o property, access toand utilization o natural resources, ood production, access to agricultural credit and

loans, and agrarian reorm.

28

With particular regard to ood, ICESCR mentions land-related measures to be taken, among others, or the progressive realization o this right.Article 11.2 reads: ...to improve methods o production, conservation and distributiono ood....by developing or reorming agrarian systems.

CEDAW at article 14 requires State Parties to take into account the particular problemsaced by rural women and to ensure that they receive equal treatment in land and agrarianreorm as well as in land resettlement schemes.The accent on rural people is justiied by the crucial role land plays or them towardsachieving their right to ood - according to SOFI 2004, small armers and landless

27

The choice o dealing with land, and not with other natural resources, is related to the prominentposition this issue holds with regard to gender discrimination in the area o interest or FAO28 See or instance art 17 UDHR, art 11 ICESCR, art 5 (d)(v) CERD, arts 14(2)(g),15(2) and

16(10(h) CEDAW.29 supra 23, p.20.


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30 http://www.ao.org/News/2002/020302-e.htm31 Cotula, ibid.

labourers are among the worlds most ood insecure. 29 In rural areas, where people

depend entirely on agriculture, poverty and hunger are largely due to lack o access toresources and assets; thereore what is most needed is reorms aimed at securing the landtenure o smallholders and improving the access o landless and poorer armers to landand natural resources.

Furthermore, in dealing with access to resources and assets, the Right to Food Guidelinesairm States should promote womens ull and equal participation in the economy and,or this purpose, introduce, where it does not exist, and implement gender-sensitivelegislation providing women with the right to inherit and possess land and otherproperty. States should also provide women with secure and equal access to, control over,and beneits rom productive resources, including credit, land, water and appropriate

technologies. (Guideline 8.6)

Women ace great diiculties in gaining secure access to, and control over land andother resources such as water and credit, as they are oten not recognized as producers or

juridical equals. Without access to productive resources womens economic independenceand ability to eed themselves are limited. According to FAO, while the proportion o

women heads o rural households continues to grow, reaching more than 30 per cent insome developing countries, less than two per cent o all land is owned by women. 30

Women rights may be held back byde iuredirect or indirect discrimination or bydefacto restrictions. The irst case is that o amily law (which may restrict the legal capacityo married women to administer property) and o succession law (which may restrict

womens inheritance rights). Considering that in rural areas o many developing countriesinheritance is the primary orm o land acquisition, such discriminatory succession normscan hamper womens land rights enormously.

Furthermore, discrimination also occurs in agrarian reorm legislation which may entitleonly men over a certain age to obtain land, while women qualiy only i they are householdheads. Womens natural resource rights may be determined by the interaction betweennorms o dierent nature coexisting in a context o legal pluralism (e.g. customary andstatutory law). Gender struggles or access to and control o natural resources may be oughtby men relying on statutory law and women relying on customary norms (to claim rightsnot recognized under statutory law). In cases where there is no ormal discrimination,

womens rights may be restricted in practice; actors such as socio economic perceptionson womens role in the amily and in society and/or emale seclusion practices canconstrain the ull enjoyment o rights and womens participation in natural resourcemanagement institutions. 31

Measures should be taken by States to increase equality between men and women inaccessing land, by avouringinter alialand ownership, inheritance and access to credit,by making these rights enorceable and secure and especially by providing institutionalstructures that can protect and strengthen equitable access to land or women, which isthreatened by both statutory and customary laws.


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3. Impmi MiriincorporAtionofinternAtionALinstrumentsintonAtionALLegisLAtion

As o January 2007, 179 States were Parties to CEDAW. I, on the one hand, womensrights now receive ormal recognition in international law, such success is not reported

with regard to practice in implementation. The conlict between protection de iureandde facto remains crucial. Countries that have ratiied CEDAW are legally bound to itsprovisions. The Conventions lays down governments obligations which correspond toindividual rights and reedoms in abstract terms so as to provide a general rameworkto be applied to all Parties and adapted to changing local contexts. At the national level,countries show dierences not only with regard to their political, social and economiccontext but also with regard to the legal system in which these international norms areto be incorporated. In particular, in countries that ollow the so-called monistic system,

once ratiied, a treaty becomes part o the law o the land and thus applicable by courts.However, countries that ollow the dualist approach normally need to adopt speciiclegislation to this eect beore the provisions o a treaty becomes applicable.

Based on a review o a hundred State Parties Reports to CEDAW dated 2003 32, an FAOsurvey ound that in at least 31 countries in the world 33 the provision o internationaltreaties such as CEDAW are part o the domestic legal order and directly applicable whilein others the incorporation o such provision in the domestic system is subject to theadoption o speciic national laws. In this regard, some countries have taken importantsteps to incorporate the entire Covenant, which in some cases was incorporated into theNational Constitution, while others took action to enorce single rights only.

As a result o the ratiication o international instruments, at the national level dierenttypes o norms aecting womens right interact with each other in a dynamic process.In a pluralist legal domain conlicting norms coexist in the same territory and on thebasis o each, claims can be raised. Statutory and customary rules violating constitutionaland international human rights norms have oten been struck down by courts. Theinteraction o these dierent bodies o norms is at the basis o womens legal status. Therelationship between statutory and customary law is determined by the legal status ocustomary law within the legal system which varies across countries, ranging rom oicialrecognition to abrogation. 34

32 See Annex.33 Albania, Algeria, Andorra, Armenia, Austria, Azerbaijan, Belgium, Belize, Brazil, Canada, Cameroon,

Costa Rica, Croatia, Czech Republic, Egypt, El Salvador, Finland, France, Georgia, Guatemala, Kyrgyzstan,Lithuania, Mongolia, Morocoo, Netherlands, Peru, Philippines, Sri Lanka, Switzerland, Ukraine, Venezuela.

34 Cotula, ibid. p.16. Alg


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3. impLementAtionAnd monitoring

concluSionS


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35 There is an ongoing eort to adopt a similar Optional Protocol to ICESCR. This was alreadyrecommended in by the World Conerence on Human Rights in 1993, but the process since then hasbeen slow due to considerable resistance rom states with a strong neo-liberal ocus on their economicpolicy. See Asbjorn Eide, The Importance o Economic and Social Rights in the Age o EconomicGlobalization, in Wenche Barth Eide and Uwe Kracht (eds.), Food and Human Rights in Development,Vol.I Legal and Institutional Dimensions and Selected Topics, Antwerpen-Oxord, 2005, p.30.

Important issues also come up with regard to the relationship between norms o a religious

origin and statutory law. In many countries, religion and womens human rights otencome into conlict. Frequently statutory law encompasses religious norms into amilyand succession law. The same goes or some cultural habits which become custom. Thediversiication o laws coexisting in pluralist countries leads to a de acto diversiicationo womens legal status in the same.

AchievementsAndshortcomingsofexistingmonitoringmechAnisms

Once States have incorporated international norms into their domestic legal system, it isimportant at the international level to strengthen monitoring mechanisms or supervising

States perormance and their compliance with the provisions o the Convention to whichthey are bound.

To date, the mechanisms available or monitoring womens rights, and in particular theirright to ood are, irstly the examination o states reports to the Convention mechanism

which is available under other treaty bodies also (i.e. ICESCR, CRC) and secondly, thepossibility o bringing an individual complaint o violations to a relevant internationalbody and receiving an authoritative pronunciation, under CEDAW Optional Protocol.To date, such ormal complaint procedures exist, apart rom CEDAW, or all civil andpolitical rights under the ICCPR. 35

A) reportingobLigAtions

According to article 18 o the Convention:

States Parties undertake to submit to the Secretary-General of the United Nations, for considerationby the Committee, a report on the legislative, judicial, administrative or other measures which theyhave adopted to give effect to the provisions of the present Convention and on the progress made inthis respect:

(a) Within one year after the entry into force for the State concerned;

(b) Thereafter at least every four years and further whenever the Committee so requests.

2. Reports may indicate factors and difficulties affecting the degree of fulfilment of obligations underthe present Convention.

The Committee has adopted guidelines to help states prepare these reports. According to theguidelines, the initial report is intended to be a detailed and comprehensive description o theposition o women in a particular country at the time o submission; it is meant to providea benchmark against which subsequent progress can be measured. Second and subsequentnational reports are intended to update the previous report, detailing signiicant developmentsthat have occurred over the last our years, noting key trends, and identiying obstacles to theull achievement o the Convention.


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Following consideration o each State Partys report, the CEDAW Committee ormulates

concluding comments which outline actors and diiculties aecting the implementationo the Convention or that State party, positive aspects, principal areas o concern andsuggestions and recommendations to enhance implementation o the Convention.

The State reporting system has limited eectiveness, not least because it is elaboratedby the very State whose behaviour is the object o investigation and who could thenpresent inormation or data as it may see it but also because the Committee hasno direct power over inormation provided. There are also structural obstacles in manycases, where the extreme diiculty o accessing data, or the lack o adequate means andresources, make the task o elaborating an accurate country report even more complicated

Also, States work on reports may at times suer rom a lack o ocus, moving rom

treaty interpretation to a general policy discussion. In order to overcome some o thesediiculties, shadow reports prepared by NGOs could provide support or the inormationrequired, observing objectiveness as external agents. A more in-depth examination o thestructure, scope and diiculties o this mechanism is presented in para c) through ananalysis o reports to CEDAW 1994-2003.

b) optionALprotocoLto cedAW

The adoption o an Optional Protocol to provide a right to petition was one o thecommitments made by States, both at the 1993 Vienna Conerence on Human Rightsand the 1995 Fourth World Conerence on Women. Its entry into orce, on 22 December2000, represents a major step towards the realization o the objectives set out in theBeijing Platorm or Action.

Under the Optional Protocol, two additional monitoring procedures applicable to StatesParties to CEDAW are oreseen: a communications procedure allowing individual

women, or groups o women, to submit claims o violation o rights to the Committee onthe Elimination o Discrimination against Women; and an inquiry procedure enablingthe Committee to initiate inquiries into situations o grave or systematic violations o

womens rights. In this sense, it can be argued that the right to ood, in its genderdimension, receives in a way a higher degree o protection than that provided or inICESCR article 11, a body which has not yet set up a mechanism to deal with individual

complaints. Ratiying States may opt out o the inquiry procedure - which is one limitto this innovative instrument - but no other reservations are permitted to its terms. As oMarch 2007, 86 States have become party to the Protocol.

In October 2004, on the occasion o the 25th Anniversary o the adoption o theConvention on the Elimination o All Forms o Discrimination against Women, theCommittee highlighted the importance o the availability o a right to petition, as wellas o an inquiry procedure, under the Optional Protocol. The Committee airmed thatthrough such mechanisms women are provided with a means o redress or claims oviolations o rights protected under the Convention. Here, the Optional Protocol canplay a positive role in the national implementation and realization o the provisions o

the Convention. 36

36 UN, CEDAW, Statement to commemorate the twenty-fth anniversary o the adoption o theConvention on the Elimination o All Forms o Discrimination against Women, 13 October 2004, p.3.


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Best practices in reporting were shown by those countries which provided a detailed

and schematic analysis o the situation o women in dierent ields, going straight intomeasures taken to implement CEDAW provisions in the observed period. Among these

were Bangladesh, Philippines, Burkina Faso, Colombia and Cuba.

b) righthoLders: womenormothers?

With regard to reporting on ood-related issues which was the ultimate object o oursurvey - two elements particularly caught our attention: the understanding o women asright-holders and the understanding o ood as a sel standing right.

Most reports ocused on the situation o mothers and children with evident conusion

between the role o women as mothers, and their independent existence as women per se.When reporting on health and on ood (oten seen as part o health) or instance, allthe attention was placed on maternal issues, reproductive health and pregnancy. Suchinterpretation however is already present in the Convention itsel when at article 12(health) the text mentions adequate nutrition only in relation to pregnant women.Countries drated their reports along the same lines, oten even shiting the ocus rommothers directly to children to the extent that reporting on women became reporting onchildren. Has this consideration o women as mothers only, got its roots in the cultureand traditions o some countries? Women are not only mothers and, moreover, theyare not vulnerable merely due to pregnancy, but to discrimination. It may be easier toattribute a vulnerable status to pregnant women than to recognize such vulnerability or

other women as well, simply on the basis o discrimination: here again, misinterpretationor political choice?

c) contentoftherighttofood: nutrition, heALthAndhumAnrights

As seen above, the Convention implicitly reers to the right to ood in article 12 andarticle 14. Countries reports relect an interpretation o the Convention that looks at theright to ood as a health issue alone. Under the same article countries reported situationso anorexia/bulimia and those o malnutrition and starvation. I, on the one hand, bothsets o problems are undoubtedly o an extremely delicate nature, on the other, theirvery nature can vary. Some considerations should be made: illnesses are not alwayspreventable; they do not necessarily relect a deprivation in terms o access which onthe other hand is the case or violation o the right to ood and, most importantly, theyare not necessarily (although some may be) the result o a human rights violation.

There is surely some common ground shared by both sets o problems: however, giventheir peculiarities, it may be advisable to tackle them separately. Illnesses like anorexiaand bulimia are or sure matters o public health, and gendered in their distribution.However, why was reporting on right to ood interpreted in most cases as relating tothese issues alone

In talking about bulimia/anorexia on the one hand, and o hunger/starvation on the

other, how much can be considered a matter o violation o human rights or each?On another note, country reports did not pay enough attention to issues such as chronicmalnutrition, starvation, the impact o HIV/AIDS on the right to ood, the role womenplay in agriculture and in all stages o the ood chain, and the relative dynamics in


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the household. With particular regard to article 14, reporting on ood as part o an

adequate standard o living in rural livelihoods ocused mostly on issues such as: socialinsurance, employment and agrarian reorm. No light seemed to come even rom theCommittees recommendations which appear to adopt the same interpretation. Fewreports mentioned ood under other provisions - or instance, under article 13: economicand social beneits.

The Convention and - as a relex - the reports conine ood to a tight net, not in line withthe developments that have taken place over time in several other areas o human rightslaw. A call or uniormity and parallel development o all related disciplines is advisable.

d) possibLeremediestoweAknessofthereports: somesuggestions

The reporting mechanismper se, as originally conceived, could be an eective monitoringtool i some o the current diiculties were overcome. Countries ull and timely reportingunder the Convention is still considered by CEDAW a critical contribution to eectiveimplementation at the national level.

Further speciications as to the type o inormation needed under each article in orderto assess its implementation could be envisaged by the Committee in reviewing theguidelines on reporting. In this regard, the Right to Food Guidelines could provide anextremely useul checklist in terms o policy areas to draw attention to.

At the same time, the monitoring eorts o NGOs should be encouraged as an additional

tool, with the value added o overcoming the obstacle represented by reports beingprepared by the same State that is the object o investigation.

The question o monitoring, however, goes beyond the reporting obligation to amore complex issue regarding the understanding o rights and relative obligations. Inthis regard, it could be argued that both the Convention, and in some instances theCommittees observation, lack clarity. The absence in the Convention o an articlespeciically devoted to the right to ood is one point. Secondly, the limitation o thetwo articles that do somehow reer to ood but conine it to two categories: pregnant

women and rural women. Finally, as the Committee is the body mandated to interpretthe Convention, greater initiative on its part would be advisable.

The development o the right to ood as a sel standing right, its normative contentand relative obligations should be relected in all instruments that attempt to reer tothis undamental right. No standard should be weakened depending on context. Andeven more so when dealing with the right to ood o particular groups which, in somecircumstances, are more vulnerable. Renewed ocus on womens rights and genderequality as called or in Millennium Development Goal 3 must go hand in hand withthe development o the rights o which women are holders: ood in primis.


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ciThis study reviews the legal background and content o the right to adequate ood in

one o its dimensions: the gender dimension. Having gone through legal provisions andlooked at countries experience in understanding and implementing same, the time isnow right to draw some preliminary conclusions on the extent o protection o womensright to ood, the achievements and the challenges ahead.From a legal point o view, it should be noted that since the adoption o the Conventionin 1979 there has been signiicant progress in the recognition and implementationo the human rights o women. However, a lack o clarity remains with regard to theunderstanding o womens rights and especially womens right to ood. Since CEDAWis the main instrument protecting womens rights, the absence in its text o a speciicarticle on the right to ood is an important omission to be dealt with, considering theact that the Convention was adopted at a time when the idea o the right to ood as asel-standing right was already well-established in several international instruments.The legal ramework or equality has been strengthened in many countries and also orood, but de iureis not de facto. There is a need to put in place, or to strengthen i alreadyexisting, institutional mechanisms that act as catalysts or the promotion and protectiono the human right to ood in its gender dimension.

National machineries or the advancement o women, gender equality commissions andombudspersons are among the mechanisms that now exist in many countries, and which,at dierent levels and with dierent mandates, actively work to make implementationo the Convention a priority o national development. Courts and judicial procedureshave likewise become more attuned to the requirements o the Convention, and are

increasingly developing a jurisprudence o gender equality, inormed and guided bythe Convention. Civil society, and especially womens groups and organizations, havebecome essential actors in awareness-raising and lobbying eorts concerning the humanrights o women. Legislative advancements are supported in many countries by policies,programmes and other measures to ensure that womens de iureequality becomes ade

facto reality. Temporary special measures are in place in many countries to accelerate theachievement o de acto equality. 38

On several occasions, the Committee has called or increased gender participation inall development programmes and activities and the ull relection o the Conventionsprinciples in national Constitutions. Action is needed in both the public and private sphere.

Millennium Development Goal No.1 is to eradicate extreme poverty and hunger;Millennium Development Goal No.2 is to promote gender equality and empowerwomen. The gender dimension o the right to ood is key to development.

38 UN, CEDAW, ibid., p. 1.


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Annex: ListofcountryreportsAnALysed

AlbaniaCEDAW/C/ALB/1-2 (2002)

CubaCEDAW/C/CUB/4 (1999)

AlgeriaCEDAW/C/DZA/1 (1998)

CyprusCEDAW/C/CYP/1-2 (1994)

AndorraCEDAW/C/AND/1 (2000)

Czech RepublicCEDAW/C/CZE/2 (2000)

Antigua e BarbudaCEDAW/C/ANT/1-3 (1994)

Dem.Peoples Rep. of KoreaCEDAW/C/PRK/1 (2002)

ArgentinaCEDAW/C/ARG/5 (2002)

Dem. Republic of the CongoCEDAW/C/COD/1

Armenia

CEDAW/C/ARM/2 (1999)

Denmark

CEDAW/C/DEN/5/Corr.1 (2002)AustraliaCEDAW/C/AUL/3 (1995)

Dominican RepublicCEDAW/C/DOM/4 (1997)

AustriaCEDAW/C/AUT/3-4 (1997)

EquatorCEDAW/C/ECU/4-5 (2002)

AzerbaijanCEDAW/C/AZE/1 (1996)

EgyptCEDAW/C/EGY/4-5 (2000)

BangladeshCEDAW/C/BGD/3-4 (1997)

El SalvadorCEDAW/C/SLV/6 (2002)

BarbadosCEDAW

fao mujeres

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