Introduction I. Human Rights, Property, and Food Access A. Human Rights Theory B. The History of the Right to Food C. What is the Right to Food? 1. Duty to Respect 2. Duty to Protect 3. Duty to Fulfill (Facilitate and Provide) II. The Right to Food, as Applied to Urban Growing in Los Angeles and Baltimore City A. Duty to Respect--Zoning B. Duty to Protect--South Central Farm C. Duty to Provide--Land III. Right to the City Conclusion INTRODUCTION
For attorneys who represent community groups working on urban agriculture in Baltimore City, an issue that nearly always arises in cases involving urban gardens is access to, and use of, land. Baltimore City owns thousands of vacant lots within the city limits, as do private owners who may have long ago abandoned their properties, died, or dissolved as corporate entities. (1) These owners, both private and public, hold the ultimate authority to exclude their neighbors from using the vacant and abandoned land, since U.S. law characterizes the essence of property ownership primarily, and most importantly, as a "right to exclude" other people, under almost all circumstances. (2) Acres of land in Baltimore City lie fallow, and because of the right to exclude, neighbors are powerless to enter those properties to transform them into community assets. (3) Some see a moral wrong in this situation: that the right to exclude held by long-defunct LLCs could trump the rights of neighbors to use land for community benefit.
But property law, like any area of law, is not immutable. It is "not about the connections between people and things, but about the connections between and among people." (4) How might other potential rights, recognized or not by the federal or state governments, interact with our understanding of property? Does our conception of property ownership lead to a situation in which we neglect the human rights of some of our poorest citizens in order to accommodate and encourage the property rights of people and organizations that have long abandoned their responsibilities?
This Article argues that human rights, including an inherent right to adequate food, intersect with legal issues relating to urban greening. (5) It will examine how a universal right to food may give legal support to a "right" to urban farming and gardening. What are the boundaries of a right to food, and how might they interact with the other rights with which the American legal system is more familiar? For example, how might human rights interact with property rights, including both property ownership rights to exclusive possession and rights to be free from nuisance conditions on adjacent properties? When one set of rights interferes with another, which should society privilege?
This Article will sketch out the possibilities of considering a human right to food: first laying out the background and history of the right, then explaining each of the three prongs within the right. Then, the Article will apply the right to food to each prong, using examples of conflicts between human rights and other rights from Baltimore City, Maryland and Los Angeles, California. Finally, the Article will discuss a concept called "a right to the city" and imagine how it might interact with rights to land and food.
HUMAN RIGHTS, PROPERTY, AND FOOD ACCESS
Human Rights Theory
Human rights theory lays out two categories of rights: positive and negative. (6) Negative human rights are those that the state must respect through its lack of intervention in its citizens' activities. (7) Most courts have interpreted the rights enumerated in the United States Bill of Rights to be negative rights, including the right to free speech and to the free exercise of religion. (8) Because of the rights enumerated in the First Amendment, the state may not, generally, interfere with an individual's right to express her opinion about any topic aloud or to practice her religion. (9)
The second, more controversial, category of human rights, includes rights that require that an outside party, usually a governmental body, provide resources to its citizens. (10) Courts in the United States traditionally have not recognized the latter category of human rights, referred to as positive rights. (11) Judge Richard Posner wrote:
[T]he Constitution is a charter of negative rather than positive liberties.... The men who wrote the Bill of Rights were not concerned that government might do too little for the people but that it might do too much to them. The Fourteenth Amendment, adopted in 1868 at the height of laissez-faire thinking, sought to protect Americans from oppression by state government, not to secure them basic governmental services.... [N]o one thought federal constitutional guarantees or federal tort remedies necessary to prod the states to provide the services that everyone wanted provided. The concern was that some states might provide those services to all but blacks, and the equal protection clause prevents that kind of discrimination. The modern expansion of government has led to proposals for reinterpreting the Fourteenth Amendment to guarantee the provision of basic services such as education, poor relief, and. presumably, police protection, even if they are not being withheld discriminatorily.... To adopt these proposals, however, would be more than an extension of traditional conceptions of the due process clause. It would turn the clause on its head. It would change it from a protection against coercion by state government to a command that the state use its taxing power to coerce some of its citizens to provide services to others. (12) Judge Posner condemns the idea that the U.S. Constitution might guarantee any minimum basic services. (13) Reflecting that condemnation, human rights discourse in the United States has been leery of positive rights, such as an individual's right to food, water, or shelter. (14) For this reason, the U.S. government has not been a reliable ally in advancing the goals of the global human rights community.
How do human rights connect with food? Food is an essential physiological human need. According to the U.S. Department of Agriculture (USDA), though over 85% of Americans were "food secure" in 2013, meaning that "they had access at all times to enough food for an active, healthy life," the remaining (15) % were food insecure during at least part of the year, and 5.6% of the American population had very low food security. (15) Very low food security is a situation in which "the food intake of one or more household members [is] reduced and their eating patterns [are] disrupted at times during the year because the household lack[s] money and other resources for food." (16) In a country as affluent as the United States, how can it be that all citizens do not have sufficient food to thrive?
In the developed world, hunger and malnutrition are problems of socioeconomic cause, not problems of sufficient quantities of food. (17) In 2014,16.5% of families in the Baltimore metropolitan area experienced food hardship. (18) Low-income neighborhoods often have insufficient or no access to stores that sell fresh, healthy foods; instead, stores sell highly processed foods (19) that can be heated up easily by people with little time to cook. Paradoxically to some, low-income communities have high levels of obesity and elevated levels of malnutrition; this may be, at least in part, due to the lack of quality, healthy foods in those areas. (20)
The urban agriculture movement that has sprung up in recent years has attempted to address issues of inequality and food insecurity. (21) However, there are few legal structures in place to encourage and protect urban growing; municipalities value these activities as interim projects but not as part of the long-term solution. (22)
In Baltimore, there have been gross inequities in the ways in which city, state, and federal governments choose to invest in urban cores. (23) Developers routinely receive significant tax breaks and special deals on land, (24) while communities receive easily revocable license agreements and lip service. (25)
The History of the Right to Food
The Universal Declaration of Human Rights, adopted on December 10, 1948, by the United Nations General Assembly, is the basis of international human rights law; (26) it explicitly articulates a human right to food. (27) Within the economic, cultural, and social rights section of the Declaration, Article 25(1) begins: "Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food" and a host of other requirements for a healthy life, including clothing, housing, and medical care. (28)
Two decades following the Universal Declaration of Human Rights, the General Assembly of the United Nations, in 1966, adopted the International Covenant on Economic, Social and Cultural Rights (ICESR). (29) In Article 11(2) of the Covenant, signatories promised that:
[In] recognizing the fundamental right of everyone to be free from hunger, [the signatories] shall take, individually and through international cooperation, the measures, including specific programmes, which are needed: (a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources; (b) Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need. (30) In 1977, under the Carter Administration, the United States signed but did not ratify this covenant. (31) The other states that are members of the United Nations but have not ratified the ICESR are: Belize, Comoros, Cuba, Sao Tome and Principe, and South...