Right to Food Mathilde Cohen Content type: Encyclopedia entries Product: Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL] Article last updated: August 2016 Subject(s): Right to food — Fundamental rights Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law. General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum. From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: New York University; date: 05 December 2019 A. Introduction 1. In the face of persistent chronic hunger in some regions of the world and malnutrition in others, the recognition of the right to food is on the rise. The notion of a right to food is used in a variety of settings, from the domestic level, where different types of constitutional recognition can be found, be they explicit or indirect, to the regional and international level, where human rights law offers its own conceptualization of the right to food. 2. The right to food is often considered interdependent with and essential to the realization of other human rights such as the → right to life, → right to health, or → right to work (Brand 163). Not only does food keep us alive, but adequate nourishment is a prerequisite to enjoy a fulfilling life. Eating is a defining element of cultural identity and self-expression, shaping one’s interactions with other humans, animals, and the environment (see also → protection and status of animals; → protection of the environment). Food may even be of intrinsic value, in and of itself a source of great pleasure and joy, regardless of its use as a means to realize other goods. Though it is often embedded in other rights such as the right to minimum entitlements, the right to food can be thought of as the most basic right (Drèze) and merits focus as an independent right (Bilchitz 58). 3. After presenting the core meanings of the right to food (B) and tracing its historical evolution (C), a comparative description of its role and meaning in South Africa, India, and the United States will be provided (D). Finally, the impact of constitutionalizing the right to food will be assessed (E). B. Definitions 4. The right to food should be distinguished from the notion of ‘food security,’ which is itself subject to contrasting interpretations. From the post-World-War-II era to the end of the 1970s, food security was equated with the goal of increasing the production of calories. In 1981, economist Amartya Sen published Poverty and Famines, which argued against the current orthodoxy that the root cause of hunger was a crisis of democracy, not a lack of productivity, given that famines occurred amid ample food supply. In the years that followed, there was a growing realization that the Green Revolution, which significantly increased production capacity worldwide, did not automatically reduce under- and malnutrition. By the 1990s, food security was reframed in political and socio-economic terms, vindicating Sen’s thesis. It was the lack of access by vulnerable people to available supply that came to be seen as the problem, rather than insufficient food supply, resulting in the ‘de-calorie-zation’ of food security (Carolan). The pivotal 1996 United Nations World Food Summit defined food security as ‘existing when all people at all times have access to sufficient, safe, nutritious food to maintain a healthy and active life’ (FAO 1996). 5. Under the old production paradigm, there was little room for a right to food, as solutions to world hunger were considered technical, requiring increased productivity. The new emphasis on access opened up unprecedented possibilities for legal interventions, whether international, constitutional, or legislative. In theory, food security could be achieved without the adoption of legal measures. But the constitutional recognition of a right to food translates into entitlements and obligations for stakeholders. It has the potential to empower the food insecure, ensuring that they are not merely passive beneficiaries of charitable food relief, but rights holders that can exercise their entitlements by holding their governments accountable. From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: New York University; date: 05 December 2019 6. Assuming we can agree that the goal of a constitutional right to food is to achieve food security for all, how can it be translated into legal entitlements and enforced in court? Is it an individual or a collective right (→ group rights)? Is it fully justiciable, and should it be, given that much of it belongs to the domain of democratic politics? Can it be operationalized immediately or are some aspects of the right only liable to progressive realization? Who are its right holders and duty bearers? Does primary responsibility for fulfilling the right lie with the state, which commands the economic and institutional resources necessary to ensure that it is realized for all individuals under its jurisdiction? If so, should the right be understood as a negative or an affirmative obligation? Must the government refrain from reducing access to food or must it proactively strengthen people’s access to food by securing sufficient food production at the national and even global level? Or, considering that hunger is often not a problem of production, but access, should the government rather provide direct food aid? Yet another approach would require that the state ensure that people retain sovereignty in controlling the mechanisms and policies of food production and distribution. Finally, there are those who argue that everyone has a duty to share food with the hungry, taking seriously the notion that each of us bears personal responsibility for transforming the systems that give rise to gross inequality (Pogge). 7. Various legal orders have responded differently to these questions, leaving us with a contested notion of the right to food. Does the right simply mean that people must receive a minimum ration of calories? Or does the right go further, calling for access to affordable foods, culturally appropriate foods, or even for the freedom to produce foods, which may all be prerequisite to adequate nourishment? At minimum, the right to food must be the right to be free from hunger, a direct threat to survival (Sen 1984). In a broader sense, the right requires that people have access to food that is safe and nutritious, meets their dietary needs, is appropriate to their cultural backgrounds, and is produced sustainably. The term ‘undernutrition’ is used to refer to inadequate intake of energy regardless of its source while ‘malnutrition’ is defined as a deficiency, excess, or imbalance of nutrients resulting in adverse health effects. Even a minimalist food right requires more than just calories; it calls for an entitlement to specific nutritional norms and particular kinds of foods to ward off both under- and malnutrition. 8. The right to food is often presented as a quintessential ‘second-generation’ or social and economic right conferring positive entitlement, rather than a first- or third-generation right. First-generation or → civil and political rights take the form of negative protections against government action, while third-generation rights go beyond civil and → social rights, providing collective or developmental rights. Yet, depending on whether the right to food is defined narrowly as a right to be free from hunger or expansively as a right to adequate food, it could also be conceptualized as a first-generation right (the right to life includes the right to be free from hunger) or a third-generation right (the right to adequate food requires a healthy environment, access to → natural resources, participation in cultural heritage, and intergenerational equity and sustainability). Before examining a few examples of how different constitutions approach food, the next section provides a brief history of the right to food. C. History 9. Though providing food has long been seen as a moral obligation as well as a survival strategy for rulers, the right to food is a relative newcomer to the legal scene. It was not until after World War II that it became recognized and even discussed in international or domestic law. The right to food as an international human right was first formally recognized by Art. 25(1) of the → Universal Declaration of Human Rights (1948) as a part of the right to a decent standard of living: ‘everyone has the right to a standard of living From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: New York University; date: 05 December 2019 adequate for the health and well-being of himself and of his family, including food, clothing, housing.’ The Universal Declaration does not require states to create positive, enforceable laws (Eide 390), but in 1966 the right to food was reaffirmed in Art. 11 of the → International Covenant on Economic, Social and Cultural Rights (1966), a binding instrument which entered into force in 1976 for those states that ratified it. Art. 11 goes beyond food as an aspect of the right to an adequate standard of living, declaring not only the right to be ‘free from hunger,’ but also to ‘adequate food.’ 10. The meaning of the right is interpreted in General Comment No 12 of the Committee on Economic, Social and Cultural Rights (CESCR 1999), which focuses on the notions of availability and accessibility. The right ‘is realized when every man, woman and child, alone or in community with others, have physical and economic access at all times to adequate food or the means for its procurement’ (CESCR 1999, para. 6). This implies the ‘availability of food in quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture … in ways that are sustainable and that do not interfere with the enjoyment of other human rights’ (CESCR (1999) para. 8). This definition overlaps with Amartya Sen’s capability approach (Sen (1989)), according to which access to food should rely on individuals’ agency and ability to be nourished in a broad sense, rather than merely receiving ‘a minimum package of calories, protein and other specific nutrients’ (CESCR (1999) para. 6). 11. Despite this consecration through various international instruments and periodic attempts at strengthening it, the international right to food has remained under-enforced. Smita Narula has criticized the international approach for failing to establish clearly defined obligations for states and to address the responsibilities of global actors such as transnational → corporations and international financial institutions that are not themselves states but nonetheless significantly impact human rights outcomes (Narula 691). Despite its shortcomings, international law has proved influential in inspiring states to afford the right to food constitutional protection at the national level. Benedikt Goderis and Mila Versteeg have documented that in 1946, none of the world’s written constitutions contained a right to food, but as of 2006, 15 per cent did (Goderis and Versteeg 41). States have been all the more enticed by constitutionalization that independent local considerations militate in favour of a right to food. By the 1960s, food security advocacy shifted from a Westerncentric focus on food as a vehicle of humanitarian assistance to a critique of the global trade and finance markets, inequality, and North-South exploitation. It is in the decolonized countries of the Global South, under the leadership of intellectuals and activists, that the right to food entered the realm of constitutionalism, underpinned by a critique of the global institutional order inherited from colonialism and capitalism (Randolph and Hertel). 12. Haiti was the first country to entrench the right to food in its 1987 anti-dictatorial Constitution (Art. 22). Since then, the national recognition of the right has steadily gained ground, with an increasing number of countries constitutionalizing it. According to a 2014 survey (Vidar et al 2014, 2–3), 29 states now explicitly recognize the right to food in their constitutions, as a human right in itself or as part of another, broader human right, including Bolivia (2004, Art. 16), Brazil (2010, Art. 6), Ecuador (2008, Art. 13), Kenya (2010, Art. 43), Egypt (2014, Art. 79), Mexico (2011, Arts 4 and 27), Nepal (2015, Art. 36), South Africa (1996, Art. 27(1)), and Zimbabwe (2013, Art. 15 & 77). Whether or not the Constitution explicitly recognizes it, the right to food may be protected indirectly or implicitly through other constitutional rights, or there may be a broader social commitment to it—what Cass Sunstein has termed a ‘constitutive commitment’ manifested through statutes, policies, and programmes (Sunstein). A number of countries that have not constitutionalized the right to food take steps to protect it through legislative action such as From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: New York University; date: 05 December 2019 framework laws implementing a national food strategy, for instance, Argentina (2003) and Indonesia (1996 and 2002). 13. ‘Developing’ countries that adopted new constitutions in the past couple of decades are disproportionately represented among those affording the right to food constitutional stature for yet another set of reasons. Since the Second World War, constitutional drafters have typically deemed socio-economic rights essential for the legitimacy of new regimes, as new legal orders are often presented as instruments of redistribution. Stand-alone rights to food illustrate the two phenomena of ‘rights creep,’ wherein constitutions tend to contain an increasing number of rights and the growth of ‘generic constitutionalism,’ wherein constitutions around the world increasingly safeguard the same rights (Law and Versteeg 2011). The growing constitutional convergence on the right to food can also be explained by the influence of international human rights law and the pressure to conform to it so as to win acceptance and support from domestic and international audiences, including financial aid. D. Comparative Evolution 14. Constitutionalizing the right to food at the national level can take various forms, from explicit and direct recognition as a human right in itself, to implicit recognition as part of other or broader human rights, to recognition as an aspirational aim within the constitutional framework, to judge-made constitutionalization via interpretation (Knuth and Vidar 14). In what follows, three case studies illustrate some of these constitutional attitudes toward the right to food: 1) where the right to food is recognized as an explicit, stand-alone constitutional right (South Africa); 2) where it is thought to be part of a directive principle and operationalized by the judiciary (India); and 3) where it is not constitutionally recognized, yet is a central topic of legislation, be it through the adoption of framework laws on the right to food or through robust policy-making (United States). Though common-law-centric, this case selection brings out generational and economic diversity. The three Constitutions at stake emerged at radically different times, from the eighteenth century US Constitution, to the post-World-War-II Indian Constitution, to the 1996 South African Constitution. They arose in dissimilar socio-economic contexts, from the land of plenty to newly industrialized countries experiencing economic growth, a widening middle class, and a transition away from a large agriculture sector. Yet, all three countries face the hardships of poverty, hunger, and malnutrition, highlighting the paradoxes inherent in the right to food. 1. South Africa: the Precursor 15. Section 27(1) of the South African Constitution provides the right to access ‘sufficient food and water’ and Section 28(1) guarantees every child the right to ‘basic nutrition.’ These provisions not only place an affirmative duty on the government to protect the right to food, including the development of objective data concerning food security (Bilchitz 63), but they also give the judicial branch significant power in deciding whether the state fulfils the constitutional mandate. South Africa’s inclusion of the right to food in the Bill of Rights was part of its post-apartheid progressive social and economic rights focus. During apartheid, it was illegal for black South Africans to own and cultivate land in most of the country, cutting off people from their traditional modes of production and consumption and resulting in hunger and malnutrition (Wylie). Constitutional drafters made a conscious effort to incorporate international-law-based protections of economic and social rights to remedy these injustices. From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: New York University; date: 05 December 2019 16. The constitutional protection of the right to food has put pressure on the South African government to take affirmative legislative action to fight hunger by creating nutritional programmes and requiring that several administrative bodies track and correct hunger. It has also been used in court to successfully challenge existing legislation. In the 2007 Kenneth George case, a group of artisanal fishers challenged The Marine Living Resources Act, which favoured commercial fishing over small-scale traditional fisheries. The claimants alleged that the government had failed to respect, protect, and promote their right to food by preventing their access to the sea. The High Court found in that their right to food had been violated and ordered a series of remedies including new legislative and policy frameworks to accommodate traditional fisheries. 17. Though the → Constitutional Court of South Africa has yet to decide a claim based on the violation of right to food, its interpretation of the → right to water indicates how it may treat similar claims for sufficient food. In the 2009 Mazibuko v Johannesburg case, the Constitutional Court upheld the city of Johannesburg’s restructuring of water services in one of its poorest urban areas even though the plan restricted water access for residents. Using the notion of → reasonableness, the Court held that Section 27 of the Constitution requires national and local governments to enact and enforce policies that feasibly guarantee a minimum enjoyment of social and economic services. In other words, an individual’s Section 27 rights to food, water, and health services are subject to resource availability and the financial constraints facing each level of government. This approach suggests that objective constraints must be considered in defining the very content of the right. 18. Although South Africa was a forerunner in consecrating a stand-alone constitutional right to food and produces enough food to feed its people, a large proportion of the population continues to lack enough or the right kind of food to eat (Nevondwe and Odeku 762). As the next couple of case studies reveal, this disconnect between the commitment to the right to food and the reality of food insecurity is not uncommon. 2. India: Nutrition as a Directive Principle of State Policy 19. India has the longest constitution in the world, which gestures toward the right to food within its ‘Directive Principles of State Policy,’ a section of the constitution that encompasses a variety of economic rights and other goals of the state. Art. 47 provides that ‘[t]he State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties.’ Unlike the South African constitutional provisions on food, the Indian directive principles are non-justiciable (Constitution of India, Art. 37). They were originally intended as unenforceable guidelines for governmental policies. Yet, by relying on other constitutional rights, the Supreme Court transformed the objective of raising the level of nutrition into a robust right to food imposing new sets of obligations on the government. In 1981, it interpreted Art. 21 of the Constitution, which provides a justiciable right to life, to include ‘the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition’ (Mullin 529). 20. Two decades later, in the 2001 People’s Union for Civil Liberties case, the Supreme Court elevated the directive principle to an enforceable right to food against the government. Combining Art. 47’s directive to raise ‘the level of nutrition’ and Art. 21’s → due process guarantee, the Court held that the government’s failure to release emergency grain reserves in a period of famine violated the due process right of the poor to access food. The case was based on a writ petition argued over the course of years, spanning a series of interim orders which led to the creation of new nutritional assistance programmes. The Court directed, for instance, all state governments to introduce cooked mid-day meals in primary schools, with wide-ranging personal and social benefits, including From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: New York University; date: 05 December 2019 a boost in school attendance, especially among girls, protecting children from hunger, enhancing child nutrition, and creating employment opportunities for low-income women. As a result of this litigation, India adopted the National Food Security Act (2013), which codifies some of the Court’s orders, providing a statutory basis for food security programmes. The Act binds national and state governments to extend far-reaching social protections including a guaranteed five kilograms monthly of subsidized grains per capita to nearly 70 per cent of the 1.2 billion population. The Indian example shows, therefore, that the constitutional recognition of the right to food, albeit indirect, can be instrumental in allowing an activist judiciary to demand legislative action. 21. In spite of these legal developments and decades of increase in food grain outputs, the per capita availability of cereals of pulses had declined in the late 2000s (Mukherjee). India produces enough food to feed its population, and even to export, but it remains home ‘to 35 per cent of the world’s undernourished children with a staggering 48 per cent of children under five stunted, indicating chronic malnutrition’ (Fukuda-Parr 87). Here ‘malnutrition’ is inclusive of undernutrition as both persist notwithstanding the country’s rapid economic growth. 3. The United States: the Paradox of Plenty 22. The US Constitution is a notoriously short document, known for establishing a tradition of negative rights against the government rather than positive rights obliging the government to take certain actions. It contains neither an explicit, stand-alone right to food, nor broader rights that could include the right to food, such as the right to an adequate standard of living. Embedded in US constitutional culture is the idea that social and economic rights are the realm of legislation and should not be constitutionalized (Sunstein). Two mentions of the importance of access to food in the context of constitutional adjudication are worth noting, however, as they suggest the US Supreme Court’s willingness to at least engage with the issue. In a 1973 case, the Court invalidated an amendment to the 1964 Food Stamp Act that sought to exclude from the food assistance programme households containing one or more unrelated persons (United States Department of Agriculture v Moreno). Though it did not ground its decision on a constitutional interest in nutrition, the Court noted that the Act’s purpose was ‘to safeguard the health and wellbeing of the Nation’s population and raise levels of nutrition among low income households,’ (United States Department of Agriculture v Moreno 533), identifying it as ‘essential federal food assistance’ (United States Department of Agriculture v Moreno 535–6, emphasis added). Going a step further, in 1978, the Court found that Arkansas inmates’ condition of solitary confinement, which included a prolonged calorie deficient diet consisting primarily of ‘grue’, ‘a substance created by mashing meat, potatoes, oleo, syrup, vegetables, eggs, and seasoning into a paste,’ violated the Eighth Amendment’s prohibition against cruel and unusual punishment (Hutto v Finney 683). 23. A broader constitutional recognition of the right to food, if it were forthcoming, could shift the focus from food assistance as form of charity to adequate food as an entitlement which people can own and define for themselves. Yet, the expanding acknowledgment that the right to food is a human right has not gained much traction in the United States, with the government consistently opposing the formal recognition of a right to food as overly burdensome and inconsistent with constitutional law (United States General Accounting Office, 1996). The government has refused to ratify the relevant international agreements incorporating a right to food, most importantly the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’). Despite being the richest country on earth, the United States is facing a food security crisis. Food insecurity not only encompasses ‘traditional’ hunger; it can mean lacking enough food or having to compromise about the From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: New York University; date: 05 December 2019 quality of food one eats, since low-quality processed foods are often more affordable and accessible than fresh and nutritious foods (Freeman). 24. One in six Americans lives in a household that cannot afford adequate food. Of these 50 million individuals, nearly 17 million are children (International Human Rights Clinic 2013, 3). The government’s predominant response to food insecurity has involved a series of programmes known as Domestic Nutrition Assistance Programs (‘DNAPs’) that provide minimum food and nutrition services to low-income Americans as a matter of statutory right. DNAPs fail to adequately address the needs of the millions of Americans who live in food insecure households. The programmes focus on providing food or the means of purchasing it without paying much attention to the quality of the food that is provisioned. Their eligibility requirements exclude many food insecure individuals. Even eligible individuals face administrative barriers to participation, such as complicated application and renewal processes, and the benefits provided are not sufficient to meet participants’ food needs (International Human Rights Clinic 2013, 3). Similar to South Africa and India, food insecurity in the United States is not the result of a shortage of food or resources, but of unequal access as well as policies and programmes which fail to prioritize the needs of underprivileged populations. E. Comparative Assessment 25. These three case studies show that the constitutional right to food has evolved divergently in distinct contexts, from South Africa, which places an affirmative duty on the state to protect the right to food, granting wide power to the judicial branch to decide whether the constitutional mandate is fulfilled, to India, where the right to food is not itself justiciable, despite the Supreme Court having allowed a major suit to compel the government to act, to the United States, where in the absence of any constitutional protection, the government addresses hunger through social welfare programmes. Much like other rights classified as social, economic, or cultural, the judicial protection of the right to food has raised concerns that it ‘would entail intrusion by judges into areas traditionally reserved to the elected branches of government’ (International Development Law Organization and Irish Aid (2015) 22). Policy makers tend to see the right to food as both too complex and imprecise for judges to handle. Typically, the relevant constitutional provisions on the right to food are schematic and do not establish clearly defined obligations for the government and private actors, except for the occasional requirement that the state take legislative measure to ‘achieve the progressive realization ... of these rights’ (South African Constitution §27(2)). 26. These concerns may explain why in most countries, access to food remains left to the discretion of the executive and legislative branches. Yet, among the courts to have tackled the right to food worldwide, it is perhaps the Indian Supreme Court that most vigorously advanced the right to food. Notwithstanding the Indian Constitution’s restrictive approach toward the justiciability of social, economic, and cultural rights, the Court ordered the state and national governments to widen access to food through massive legislative reforms, social welfare expansion, and food relief programmes. By contrast, in South Africa, where the right to food is fully justiciable, the Constitutional Court has yet to adjudicate a claim based on its violation (and the Mazibuko precedent on the right to water suggests that the Court could excuse government compliance based on resource constraints). The extent to which the right to food is effectively claimed and complied with, therefore, may have more to do with social and political support than constitutional law, especially considering that From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: New York University; date: 05 December 2019 the right to food is ‘more likely to challenge private-market ideology and require governments to intervene more than they might wish in the economy’ (Riches 773). 27. The so far unmentioned case of Colombia vividly illustrates the importance of judicial activism in giving tangible, effective effect to the right to food. Though lacking an explicit, self-standing right to food and clear enforcement provisions for economic, social, and cultural rights, the Colombian Constitution recognizes a bundle of food rights or protected interests in access to food and food production for specific categories of the population such as women, children, seniors, and agricultural workers (Political Constitution of Colombia, Arts 43, 44, 46, 64, 65). To ensure access to food for these constituencies, the Constitutional Court (→ Constitutional Court of Colombia (Corte Constitucional de Colombia)) used the tutela procedure creatively. Most notably, in Decision T-025 (2004) (Colom) on internal displacement due to armed conflicts, the Court found that the dire ‘nutritional situation of the displaced population,’ which ‘only consume[s] 43 per cent of the levels recommended by the World Food Program,’ particularly children under six years of age, was a constitutional violation (Decision T-025, para 6). It declared that among the minimum rights of the displaced population figures the → right to minimum level of subsistence, including safe access to ‘essential food and potable water’ (Decision T-025, para 9). The Court ordered the authorities to provide immediate food assistance to internally displaced persons as an interim relief while they developed structural measures to ensure lasting resource allocations. To guarantee compliance, the Court retained its jurisdiction over the case, allowing for follow-up public hearings involving the civil society and issuing a string of decisions on implementation. 28. The status of the right to food and the question of its justiciability exemplify the endurance of divergent views on the place of human rights values, especially socioeconomic rights, in constitutions. The right to food is often conceptualized as protecting the poor and the propertyless, but socio-economic rights are generally majoritarian, enforced for the benefit of the middle classes, rather than minoritarian in character (Landau). In that sense, the value of a constitutional right to food, even if justiciable, is questionable absent equitable income distribution. As the South African case suggests, an explicit, justiciable constitutional right to food does not guarantee actual access to food. There is enough food on the planet to adequately feed everyone alive today, but inequitable access has resulted in about 795 million, one in nine people on earth, to suffer from chronic undernourishment (FAO (2015)). Rural people, people of colour, women, children, and prisoners are particularly vulnerable to hunger and malnutrition given that access to food is mediated by economic, social, and political filters (Fukuda-Parr 86). New forms of food insecurity due to climate change are likely to worsen these distributional inequities by disproportionately affecting the most food-insecure populations. 29. In popular discourse, hunger is still often explained as a problem of supply shortage rather than a problem of access and distribution. Yet, as the South African, Indian, and US case studies demonstrate, the modern world is characterized by the persistence of hunger and malnutrition amidst economic and agricultural growth. According to some advocates, the protectionist framing which dominates food security debates (increasing food production and giving away cheap calories) cannot substitute for structural changes such as land (re-)distribution, public investment or policies encouraging research and technology for sustainable food production, investment in agricultural infrastructure such as irrigation, road networks, storage and processing facilities, credit, as well as social policies such as supporting families with redistributive policies that would make healthy diets available to all (De Schutter (2014) 3–4). Others focus their attention not so much on internal politics as on global trade and finance. The international peasant movement ‘La via campesina,’ which defends small-scale sustainable agriculture as a way to promote social justice and dignity, thus opposes the increasing purchase of land by foreign governments and corporations in From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: New York University; date: 05 December 2019 countries of the Global South, most notably in Latin America and Africa (Golay and Biglino). The ‘food sovereignty’ ideal promoted by La via campesina and other grassroots initiatives, which can be defined as people’s ability to control their own food and agriculture systems, assumes that hunger is perpetuated not only by neoliberal globalization, but also by the system of state sovereignty, which modern human rights and constitutional regimes reinforce. 30. In 1984, Philip Alston wrote about the international human right to food: ‘[i]t is paradoxical, but hardly surprising that the right to food has been endorsed more often and with greater unanimity and urgency than most other human rights, while at the same time being violated more comprehensively and systematically than probably any other right.’ (Alston 9). Three decades later, pervasive human hunger seems to indicate a similar failure of the constitutional right to food. The structure of social activism surrounding food may account, at least in part, for this mismatch between constitutional texts, aspirations, and realities. The major difference between the so-called ‘food movement’ and the various civil rights movements which arose in the twentieth century is that the mobilizing framework in the fight for civil rights centred upon membership in, or identification with, a subordinated group defined by race, colour, sex, gender, or sexual orientation. By contrast, being food insecure has not, so far, constituted a rallying form of identity on a similar scale. In fact, the food movement has been criticized for originating primarily from middle class whites in affluent countries, whose interest do not always align with those of food insecure populations (Guthman). The resulting discrepancy between mainstream food advocacy and the lived experience of food injustice may explain the uncertain role of constitutional law in advancing food security. In the long term, the hope is that as the constitutional approach to food rights gains traction, it will become, if not an identity-defining medium, at least a rallying point around which the food insecure can organize. 31. Does it make a difference whether the right to food is constitutionally recognized? Despite the inherent limits of law and constitutionalism (Eisgruber), the constitutional recognition of the right may have at least four beneficial effects. First, according to Olivier De Schutter, the former United Nations special rapporteur on the right to food, the insertion of a justiciable, stand-alone right to food in a national Constitution minimizes the uncertainty of judicial interpretation, especially compared to jurisdictions where the right is simply a directive principle or implied through other constitutional rights (De Schutter (2010) 5). Second, ‘constitutional recognition allows for a trickle down or cascading effect to take place from the constitutional right to the national laws, to the policies and strategies, and to the program level’ (De Schutter (2010) 5). The existence of a distinct constitutional right to food, even if it does not immediately translate into concrete entitlements and improved food security, provides a good case for lodging administrative responsibility in a distinct organization and the locus of responsibility in the state, increasing the odds that people will at least be free from hunger (Bilchitz 67–8). Third, constitutionalization can help people ‘demand those adequate laws and policies which establish an enabling environment for them to realize their right to food’ (De Schutter (2010) 5). Finally, even the most modest (indirect, non-justiciable) form of constitutional recognition of the right to food can influence public perceptions of who is entitled to what, which may make a concrete difference in the long run. Select Bibliography Alston, P, and Tomasevski, K, (eds), The Right to Food, International Studies in Human Rights (Martinus Nijhoff 1984). From: Oxford Constitutions (http://oxcon.ouplaw.com). 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