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Legal processes

The provision of support to the development of legal frameworks for right to food and for inclusion of this right at constitutional level increases the effective enjoyment of this fundamental human right through its constitutional or statutory recognition.

The right to food is legally recognized in Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the obligations of States Parties are set out in Article 2, establishing that:

“Each State undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures” (…)

Depending on a country’s legal and constitutional system, the international treaty’s provisions can be directly applied in the same way as national legislation or it will require specific legislative action to incorporate treaty provisions in the national legal system. In its General Comment 3, the CESCR considered that in many instances legislation is highly desirable and “may be even indispensable” in order to give effect to the rights guaranteed in the ICESCR (paragraph 3).

In addition to the ICESCR, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) represents an important legally binding instrument which, by enhancing the rights, potential and opportunities of rural women, facilitates the implementation of other fundamental economic, cultural and social rights, including the right to adequate food. In particular, the Convention recognizes in article 12 the right of pregnant and lactating women to special protection with regard to adequate nutrition and in article 14 the right of rural women to equal access to land, water, credit and other services, social security and adequate living conditions.

Legislation is thus a fundamental instrument in implementing right to food related national strategies aiming at eradicating extreme poverty and reducing overall poverty (SDG1), ending hunger and all forms of malnutrition (SDG2) and achieving gender equality (SDG5). Yet, the choice of an adequate legal strategy depends on the particular mix of policies, institutions and legal frameworks already existing in each country.

There are three main complementary levels of legislative action that States may undertake:

  • Incorporation of the right to food in national constitutions;
  • Adoption of food security or right to food framework laws defining clear objectives, institutional responsibilities and overarching principles to orient policies and programmes, and promoting coherence;
  • Review of the most relevant sectoral legislation affecting the enjoyment of the right to food for their compatibility with this human right, gender equality and the rights of vulnerable groups (indigenous people, migrants, children…).

FAO works on these three areas of legal intervention providing technical support to countries in the development of legal frameworks for the implementation of the right to food. In strong collaboration with FAO Legal Office, which alone has the mandate to provide direct legislative support, the Right to Food Team undertakes awareness raising involving national actors and counterparts who have a key role to play in the development of legislation.

While legislative action is thus essential to implement the right to food (as well as all other human rights) at national level, legal solutions alone are not sufficient to achieving its full realization. Effective enjoyment of an economic and social right – even if constitutionally or statutorily recognized – is not possible without effective policy and programme follow-up.

The Right to Food Guidelines can help governments design appropriate policies, strategies and legislation. Guidelines 5 (“Institutions”), 7 (“Legal framework”), 17 (“Monitoring, indicators and benchmarks”) and 18 (“National human rights institutions”) offer states practical guidance for developing effective institutional and legal frameworks to guarantee the right to adequate food and for establishing independent mechanisms to monitor and evaluate the implementation of these Guidelines towards the realization of this right.

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