The Enforceability of the Human Right to Adequate Food: A Comparative Study

471 Pages·2014·35.425 MB·English

by  Bart F. W. Wernaart

The enforceability
of the human right
to adequate food
A comparative study
Bart Wernaart
The enforceability of the human right
to adequate food
Buy a print copy of this book at:
www.WageningenAcademic.com/EIFL-08
Also available in the 'European Institute for Food Law series':
European Food Law Handbook
Bernd van der Meulen and Menno van der Velde
ISBN 978-90-8686-082-1
www.WageningenAcademic.com/foodlaw
Fed up with the right to food?
The Netherlands' policies and practices regarding the human right to adequate food
edited by: Otto Hospes and Bernd van der Meulen
ISBN 978-90-8686-107-1
www.WageningenAcademic.com/righttofood
Reconciling food law to competitiveness
Report on the regulatory environment of the European food and dairy sector
Bernd van der Meulen
ISBN 978-90-8686-098-2
www.WageningenAcademic.com/reconciling
Governing food security
Law, politics and the right to food
edited by: Otto Hospes and Irene Hadiprayitno
ISBN: 978-90-8686-157-6; e-book ISBN: 978-90-8686-713-4
www.WageningenAcademic.com/EIFL-05
Private food law
Governing food chains through contract law, self-regulation, private standards, audits
and certification schemes
edited by: Bernd van der Meulen
ISBN: 978-90-8686-176-7; e-book ISBN: 978-90-8686-730-1
www.WageningenAcademic.com/EIFL-06
Regulating food law
Risk analysis and the precautionary principle as general principles of EU food law
Anna Szajkowska
ISBN: 978-90-8686-194-1; e-book ISBN: 978-90-8686-750-9
www.WageningenAcademic.com/EIFL-07
The enforceability
of the human right
to adequate food
A comparative study
Bart F.W. Wernaart
Wageningen Academic 
P u b l i s h e r s
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Wageningen Academic Publishers
ISBN: 978-90-8686-239-9 P.O. Box 220
e-ISBN: 978-90-8686-791-2 6700 AE Wageningen
DOI: 10.3920/978-90-8686-791-2 The Netherlands
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ISSN 1871-3483
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The Netherlands, 2013 of content derived from this publication.
Preface
This research marks the end of an extremely intense, inspiring, vivid and turbulent
period. I would like to go back 12 years, when this all started as I made the choice
to study international law at Tilburg University. At the same time I was studying
drums and mallets at the Conservatory in the same city. I gradually found my
way through the University curriculum, and ran into the ear-splitting lectures of
Mr Frank Vlemminx, PhD. While in this book it will become apparent that I do
not always agree with his points of view, he most certainly inspired me to learn
more about this wonderful field of expertise that is called human rights. Since
we had a thing or two in common, not in the least the fact that Frank was not
only a lawyer but also artistically active as a painter, he would later be my thesis
supervisor. During an internship at Wageningen University and Research Centre,
I became acquainted with Professor Bernd van der Meulen, who introduced me
more specifically to one of the most violated rights in the world: the right to
adequate food. After graduating, I found a job as lecturer at Fontys University
of Applied Sciences. In the meantime I was composing a rock opera to finish
my second study at the Conservatory: conducting. My employer gave me the
opportunity to start a research project, and I became an external PhD student at
the WUR, under the supervision of Bernd. I was now able to do all the things that
I admired doing: teaching, playing music, and doing research. A perfect match
for which I am ever grateful.
Finalising this book marks the end of a period of approximately five years of
conducting intense research. I cannot even begin to imagine how much I have
learned from the whole exercise. Writing a PhD thesis is a very lonely experience.
However, during this period, I was never truly alone. I therefore wish to thank
many people from the bottom of my heart.
First of all, of course Bernd, who never lost his patience in guiding me through
the whole process. He has the rare gift of making a person feel encouraged,
determined and self-assured about the research on the way back home, while
feeling completely lost on arrival.
Next to that all my colleagues at Fontys University, who were always very supportive
and interested in my progress, and to the management of my department, which
gave me the financial support and time necessary to complete this book.
Furthermore, I would like to thank all my students whom I had the joy of teaching
throughout the years. I would dare to say that I’ve learned at least as much from
you as you might have learned from me.
For me, music is my first and primary way of expressing myself. Throughout
the year, I have had the honour to play music in my role as a drummer and
The enforceability of the human right to adequate food 5
Preface
conductor with many people. A special thank you goes to my percussion group in
Valkenswaard and both my choirs in Heusden, for sharing your talents with me.
You have no idea what the beat of your drums and the sound of your voices mean
to me. A big applause for my rock band the Seasons, for we did some incredible
things lately, and to the Ameezing band and vocals: it seems that I’ve become
Bart Wernaart, PhD, after all.
Also, I would like to thank my friends. Some of them I have known for a lifetime,
others just recently jumped into my life. I count myself lucky with such a wonderful
group of amazing persons who keep surprising me with the humour, wisdom and
solid friendship they share with me.
My family in law-to-be, for their continuous support and encouragement.
My wonderful brothers, Peter and Geert. If a comparist would compare us, the
conclusion would be that we are so similar in our differences. It is a joy to see
the paths they chose so far, and I am extremely proud of them.
My father who, from the very beginning, believed in my scientific capabilities, is
one of the most intelligent persons I have ever encountered, and has been simply
indispensable during the whole process.
Then, I am blessed with two power-women around me.
My mother, whose passion for teaching the very young amongst us certainly
ended up somewhere in my DNA, and who has always been a safe haven when
times were a bit rough.
My fiancée, Sylvia, the love of my life, who said ‘yes’ to my marriage proposal. Being
with a man who is from time to time losing himself somewhere between books,
reports, documents and Court rulings requires a lot of love and determination. I
will not try to put into words how thankful I am for that.
Bart Wernaart
Valkenswaard 2013
6 The enforceability of the human right to adequate food
Table of contents
Preface 5
Abbreviations 11
Part 1 – Introduction, methodology and tertium comparationis
1. Introduction 15
1.1 A right for all and a right for each 15
1.2 Research objective and questions 18
1.3 Demarcations, terminology and references 19
1.4 Book structure 22
2. Methods 23
2.1 Introduction 23
2.2 Comparative law methodology 24
2.3 Purposes of comparative law 25
2.4 Choice of country 28
2.5 The functional method 31
2.6 The constructive move into more detail 44
2.7 Conclusion and structure of the book 51
3. The enforceability of the international human right to
adequate food 55
3.1 Introduction 55
3.2 The legal development of the concept of ‘right to food’ over time 55
3.3 The right to food in international, regional and domestic human
rights systems 60
3.4 The meaning of ‘adequate food’ 71
3.5 State obligations regarding the right to food 74
3.6 Conclusion 97
Part 2 – The Netherlands
4. Dutch case law on the enforceability of the right to adequate food 103
4.1 Introduction 103
4.2 The Dutch Judiciary 103
4.3 Article 11 ICESCR 105
4.4 Article 24 ICRC 111
4.5 Article 26 ICRC 112
4.6 Article 27 ICRC 112
4.7 Article 12 CEDAW 118
4.8 Concluding observations 118
The enforceability of the human right to adequate food 7
5. Dutch monism and the Constitutional reforms of Article 93
and 94 CA 121
5.1 Introduction 121
5.2 Qualified monism 121
5.3 Dutch scholars on the meaning of Articles 93 and 94 Constitutional Act 122
5.4 Questions 131
5.5 On parliamentary history/the legislative process 132
5.6 The Constitutional reform of 1953 133
5.7 The Constitutional reform of 1956 143
5.8 The Constitutional reform of 1983 145
5.9 Conclusion 152
6. Dutch Parliamentary History on the right to adequate food 157
6.1 Introduction 157
6.2 Article 11 ICESCR 158
6.3 Article 24 ICRC 160
6.4 Article 26 ICRC 161
6.5 Article 27 ICRC 166
6.6 Article 12 CEDAW 168
6.7 Conclusion 169
7. Dutch Parliamentary History on the enforceability of human
rights 171
7.1 Introduction 171
7.2 The ECHR 172
7.3 The ESC (earliest version) 177
7.4 The ICCPR and the ICESCR 179
7.5 The CEDAW 187
7.6 The ICRC 194
7.7 The European Social Charter (revised version) 206
7.8 Conclusion 210
8. Intermezzo: the right to strike 213
8.1 Introduction 213
8.2 The direct applicability of Economic, Social and Cultural Rights in
general 214
8.3 The railway-strike ruling 215
8.4 The Parliamentary History concerning Article 6 (4) ESH 216
8.5 The Parliamentary History concerning Article 8 ICESCR 222
8.6 Conclusion 224
8 The enforceability of the human right to adequate food
9. The Dutch periodic country reports 227
9.1 Introduction 227
9.2 The ICESCR reports 228
9.3 The ICRC reports 249
9.4 The CEDAW reports and the right to food 256
9.5 The Universal Periodic Review 268
9.6 Concluding remarks 270
10. Evaluation and comparison 271
10.1. Introduction 271
10.2 An obscure Constitutional system 271
10.3 The right to food invoked in the Dutch Courts 271
10.4 The Dutch position with regard to the right to food 272
10.5 The direct applicability of economic, social and cultural rights in
the Netherlands 273
10.6 Comparing the legal practice with the reporting behaviour 274
Part 3 – Belgium
11. The Belgian Constitutional System and the applicability of
international legal standards 279
11.1 Introduction 279
11.2 The Belgian Legislature 279
11.3 The Belgian legislative process 280
11.4 The Belgian Judiciary 282
11.5 Belgian monism 293
11.6 Concluding remarks 294
12. The Belgian case law on the enforceability of the right to
adequate food 295
12.1 Introduction 295
12.2 The Council for Aliens Disputes 296
12.3 The Council of State 300
12.4 The Court of Cassation 306
12.5 The Constitutional Court 310
12.6 Concluding remarks 341
13. The Belgian periodic country reports 345
13.1 Introduction 345
13.2 The ICESCR reports 345
13.3 The ICRC reports 367
13.4 The CEDAW reports 394
13.5 The Universal Periodic Review 399
13.6 Concluding remarks 399