State Obligations under the Inter-American Human Rights System concerning Unhealthy Diets: An Opportunity to Advance NCD Prevention in the English-Speaking Caribbean?
| Author | Aura Guerrero and Nicole D. Foster |
| Pages | 45-69 |
State Obligations under the Inter-American
Human Rights System concerning Unhealthy
Diets: An Opportunity to Advance NCD
Prevention in the English-Speaking Caribbean?
Aura Guerrero1 and Nicole D. Foster2
Abstract
The English-speaking Caribbean has one of the highest noncommunicable
disease burdens in the Americas. Although unhealthy diet is one of the principal
drivers of these countries’ noncommunicable disease epidemic, to date they have
not made meaningful progress on regulating their food environments. This article
examines state obligations under the Inter-American Human Rights System related
to unhealthy diets and comments on their potential to support and accelerate action
on unhealthy diets in the English-speaking Caribbean. The authors argue that,
notwithstanding these countries’ limited participation in the Inter-American Human
Rights System and their dualist tradition, the Inter-American Human Rights System
can be a useful tool to encourage greater government action to regulate their national
food environments.
Keywords
Inter-American Human Rights System; noncommunicable diseases; unhealthy
diets; English-speaking Caribbean; dualism.
Introduction
Noncommunicable diseases (NCDs), also known as chronic diseases, refer to
various conditions, including cardiovascular and chronic respiratory diseases, cancers,
and diabetes, which are not primarily caused by acute infection, but which result
1 Associate, Health and Human Rights Initiative, O’Neill Institute for National and Global Health
Law, Georgetown University Law Center. Email: aeg126@georgetown.edu.
2 Law Lecturer and Head, Law & Health Research Unit, Faculty of Law, University of the West
Indies, Cave Hill Campus, Barbados. Email: nicole.foster@cavehill.uwi.edu.
46
State Obligations under the Inter-American Human Rights System concerning Unhealthy Diets:
An Opportunity to Advance NCD Prevention in the English-Speaking Caribbean?
in long-term health and other consequences.3 NCDs are arguably one of the most
pressing public health challenges globally. In 2022, NCDs accounted for 41 million
(74%) deaths globally, with 77% of these in low-and middle-income countries.4
According to the World Health Organization
(WHO), each year 17 million people die prematurely (i.e. between the ages of
30 and 69 years) from one of the four major NCDs (cardiovascular disease, chronic
respiratory disease, cancers, and diabetes) and 86% of these deaths are in low-and
middle-income countries.5 In the Americas, particularly in the Caribbean, NCDs
carry some of the highest health-related burdens and are the most common causes
of death.6 NCDs account for 80% of deaths in the English-speaking Caribbean7
with cardiovascular diseases (CVD), being the leading cause of death.8 The English-
speaking Caribbean also has some of the highest NCD mortality rates and the
highest diabetes death rate in the Americas,9 while Guyana has the highest rate of
premature NCD mortality in the Americas.
10
These gures are especially disturbing
when one considers that NCDs are largely preventable through action to address their
ve modiable risk factors, namely, tobacco use, alcohol consumption, unhealthy
diet, insucient physical activity, and air pollution.11 Indeed, scaling up national
NCD responses through the use of cost-eective interventions to reduce NCD risk
factors is at the heart of the Global Action Plan for the Prevention and Control
of Noncommunicable Diseases 2013 – 2030 (which includes the updated list of
3 WHO, ‘Fact Sheet on Noncommunicable diseases’
sheets/detail/noncommunicable-diseases > accessed 10 May 2023.
4 Pascal Bovet, Colin Mathers, Nick Banatvala and Majid Ezzati, ‘Global burden of NCDs’ in
Nick Banatvala and Pascal Bovet (eds), Noncommunicable Diseases: A Compendium (Routledge 2023)
12. See also WHO, ‘Noncommunicable Diseases. Key Facts’ (16 September 2022)
www.who.int/news-room/fact-sheets/detail/noncommunicable-diseases>.
5 ibid.
6 PAHO, NCDs at a Glance: NCD Mortality and Risk Factor Prevalence in the Americas PAHO/NMH/19-
014 (2019) 4.
7 This concept includes what PAHO considers as Non-Latin Caribbean countries: Antigua &
Barbuda, The Bahamas, Barbados, Dominica, Grenada, Guyana, Jamaica, St. Kitts and Nevis,
St. Lucia, St. Vincent and the Grenadines, Suriname and Trinidad and Tobago.
8 PAHO, NCDs at a Glance: NCD Mortality and Risk Factor Prevalence in the Americas PAHO/NMH/19-
014 (2019) 9.
9 PAHO, NCDs at a Glance: NCD Mortality and Risk Factor Prevalence in the Americas PAHO/NMH/19-
014 (2019) 11.
10 PAHO, NCDs at a Glance: NCD Mortality and Risk Factor Prevalence in the Americas PAHO/NMH/19-
014 (2019) 6.
11 PAHO, ‘Noncommunicable Diseases’
diseases>.
47 State Obligations under the Inter-American Human Rights System concerning Unhealthy Diets:
An Opportunity to Advance NCD Prevention in the English-Speaking Caribbean?
‘Appendix 3’ measures also known as the WHO NCD ‘Best Buys’) and underlines
the need for prevention to feature prominently in national NCD responses.12
Although NCDs tend to be viewed as purely a health issue, they have signicant
economic costs. Accordingly, the 2015 Barbados Investment Case for NCD Prevention
and Control reported that as much as $64 million Barbados dollars (approximately $31
million US dollars) was spent on the treatment of diabetes alone and that the economy
was potentially losing as much as $146 million Barbados dollars (approximately $73
million US dollars) annually due to missed workdays, low productivity and reduced
workforce participation.
13
Along similar lines, the 2018 Jamaica Investment Case for
NCD Prevention and Control reported that over a 15-year period, implementing
the selected NCD prevention and control measures would result in a gain of 4.3%
of current annual Gross Domestic Product (GDP) as a result of productivity gains
(less missed days of work, improved productivity while at work as well as less persons
leaving the workforce due to premature mortality) and reduced treatment costs.
14
In
the Organisation of the Eastern Caribbean States (OECS), the aggregate economic
burden of NCDs is comparable to other Caribbean countries at around 3% of
GDP, but this is felt to be a substantial underestimation of the true total economic
burden.15 More recently, at the May 2023 edition of the Barbados Central Bank’s
Caribbean Economic Forum entitled ‘Managing the Costs of and Economic Fallout
from Non-Communicable Diseases in the Caribbean’, Karl Theodore, Professor
Emeritus/Advisor, Centre for Health Economics, UWI, St Augustine estimated that
NCDs are potentially costing the region more than 10% of GDP.16
Perhaps the most signicant impact of NCDs, however, is their impact at an
individual level on the quality of life of those living with NCDs and that of their
carers (and by extension, their ability to fully enjoy their human rights). Viewed
from this perspective, NCDs are much more than simply a health or socio-economic
12 WHO, Global Action Plan for the Prevention and Control of Noncommunicable Diseases 2013
– 2020 (2013, WHO). In 2019 the World Health Assembly extended the operation of the Action
Plan to 2030: Decision 72WHA(11).
13 Ministry of Health, UNITAF, WHO and the UNDP, The Investment Case for Non-communicable
Disease Prevention and Control in Barbados 2 (2015 WHO and UNDP).
14 UNIATF, UNDP and PAHO, The Case for Investment in Prevention and Control of Noncommunicable
Diseases in Jamaica: Evaluating the Return on Investment of Selected Tobacco, Alcohol, Diabetes and Cardiovascular
Disease Interventions (2018 UNIATF, UNDP and PAHO).
15 World Bank, The Growing Burden of NonCommunicable Diseases in the Eastern Caribbean 36 (2012 World
Bank).
16 Central Bank of Barbados, ‘Managing the Costs of and Economic Fallout from Non-Communicable
Diseases in the Caribbean’ (10 May 2023) <https://www.youtube.com/watch?v=f25g3R0XSV4>
accessed 10 June 2023.
48
State Obligations under the Inter-American Human Rights System concerning Unhealthy Diets:
An Opportunity to Advance NCD Prevention in the English-Speaking Caribbean?
issue – they are also a human rights issue. The right to health and its related rights
such as the right to life, the right to adequate food and the right to education, are all
implicated by the impacts and burden of NCDs, particularly for the most vulnerable
and marginalised in society. In fact, recently there has been increased recognition
internationally and regionally of the link between NCDs, their risk factors and human
rights and of the need to examine NCDs through a human rights lens, ensuring
that prevention is a prominent part of national NCD responses. This is seen in
documents such as former United Nations Special Rapporteur on the Right to the
Highest Attainable Standard of Physical and Mental Health (UN Special Rapporteur
on the Right to Health), Anand Grover’s 2014 thematic report ‘Unhealthy Foods,
Non-Communicable Diseases and the Right to Health’; as well as in the July 2020
statement by the former UN Special Rapporteur on the Right to Health, Dainius
Pūras, on the adoption of front-of-package warning labelling to tackle NCDs; and
the Inter-American Commission on Human Rights’ thematic reports: ‘Business
and Human Rights: Inter-American Standards’, published in 201917 and ‘NCDs
and Human Rights in the Americas’, published in 2023.18 The value of a human
rights-based approach to social problems such as NCDs lies in the fact that, as the
former UN Special Rapporteur on extreme poverty and human rights explained,
“Human rights provides a context and a detailed and balanced framework;
it invokes the specic legal obligations that States have agreed upon in
the various human rights treaties; it emphasizes that certain values are
non-negotiable; it brings a degree of normative certainty; and it brings
into the discussion the carefully negotiated elaborations of the meaning
of specic rights that have emerged from decades of reection, discussion
and adjudication”.19
Building on this idea of human rights-based approaches as valuable tools for
advancing work on social problems, this paper examines whether the human rights
17 UNHRC ‘Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the
Highest Attainable Standard of Physical and Mental Health,’ (2014) UN Doc A/HRC/26/31;
Inter-American Commission on Human Rights, ‘Business and Human Rights: Inter-American
Standards’ OEA/Ser.L/V/II CIDH/REDESCA/INF.1/19 (Washington DC 1 November 2019).
18 Inter-American Commission of Human Rights, ‘Noncommunicable Diseases and Human
Rights in the Americas’ (2023) .oas.org/es/cidh/informes/pdfs/2023/REDESCA_
enfermedades_NoTransmisibles_DDHH_SPA.pdf>.
19 UNHRC ‘Report of the Special Rapporteur on Extreme Poverty and Human Rights’ (2015)
UN Doc A/70/274 para 65.
49 State Obligations under the Inter-American Human Rights System concerning Unhealthy Diets:
An Opportunity to Advance NCD Prevention in the English-Speaking Caribbean?
obligations under the Inter-American Human Rights System related to unhealthy diet
can be used to compel governments in the English-speaking Caribbean to strengthen
and accelerate their eorts to regulate their national food environments. To this
end, the paper begins with a discussion of the nature, scope, and justiciability of the
right to health and some of its related rights relevant to unhealthy diets within the
Inter-American Human Rights System. It then focusses on the nature and extent of
States’ obligations to respect and ensure these rights, including an examination of
States’ duty to regulate the food and beverage industry.
20
The paper then moves on
to explore the problem of unhealthy diets in the English-speaking Caribbean and
some of the potential challenges to implementation of the Inter-American human
rights standards domestically. The paper ultimately concludes that, notwithstanding
the English-speaking Caribbean’s limited participation in the Inter-American Human
Rights System and the constraints of their dualist tradition, there are nonetheless
opportunities to exploit Inter-American human rights standards to support ongoing
eorts to regulate NCD risk factors and ultimately make a positive contribution to
eective NCD prevention and control across the region.
1. The right to health and its justiciability in the Inter-American Human
Rights System
The right to health is explicitly protected by various instruments within the
Inter-American Human Rights System, such as the Charter of the Organization
of American States (OAS),21 the American Declaration of the Rights and Duties
of Man,22 the Social Charter of the Americas,23 and the Additional Protocol to the
American Convention on Human Rights in the Area of Economic, Social and Cultural
Rights (Protocol of San Salvador), which states that “everyone shall have the right to
health, understood to mean the enjoyment of the highest level of physical, mental
and social well-being”.24 Similarly, the Social Charter of the Americas contemplates
States’ commitment to “promote healthy lifestyles and to strengthen their capacity
20 See Isabel Barbosa, Belen Ríos and Tovar Ariadna, ‘State Obligations in the Context of Unhealth
Diets: Paving the Way within the Inter-American Human Rights System’ (2021) 11 Revista
Internacional de Derechos Humanos 18–19
download/647/905/> accessed 20 May 2022.
21 Charter of the Organization of American States art 34.i.
22 American Declaration of the Rights and Duties of Man art XI.
23 Social Charter of the Americas art 17.
24 Additional Protocol to the American Convention on Human Rights in the area of Economic,
Social and Cultural Rights ‘Protocol of San Salvador’ art 10.
50
State Obligations under the Inter-American Human Rights System concerning Unhealthy Diets:
An Opportunity to Advance NCD Prevention in the English-Speaking Caribbean?
to prevent, detect, and respond to chronic NCDs”.25 Notably, the Inter-American
Court of Human Rights (Inter-American Court) has protected the right to health
in connection with other rights, such as the rights to life and personal integrity,
protected in articles 4 and 5 respectively of the American Convention on Human
Rights (ACHR).26 More recently, the Inter-American Court ruled that the right to
health, as an economic, social, cultural and environmental right mentioned in the
Charter of the OAS, is an autonomous right, justiciable and protected by article
26 of the ACHR.27
The case-law of the Inter-American Court has developed the content of the
right to health and States’ obligations to respect and ensure this right. The right to
health has been conceptualized by the Inter-American Court as not only the absence
of illnesses, “but also as a complete state of physical, mental and social well-being,
derived from a lifestyle that allows people to achieve an integral balance”.28 In its
judgments on the right to health, the Inter-American Court has adopted international
standards developed by other international bodies or has endorsed calls issued by
international bodies, such as the Committee on Economic, Social and Cultural Rights
(CESCR) and the Pan-American Health Organization (PAHO). For example, the
Inter-American Court has ruled, just like the CESCR, that the right to health in all
its forms and levels requires compliance with four essential, interrelated elements:
availability, accessibility, acceptability and quality.29
25 Social Charter of the Americas art 17.
26 Ximenes Lopes Vs Brazil [2006] Serie C No 149 (Inter-American Court of Human Rights) [95];
Albán Cornejo et al Vs Ecuador Merits, Reparations and Costs (2007) Series C No. 171 (Corte
IDH) [117–121]; Silvia Serrano Guzmán, ‘Comentarios Sobre El Giro Jurisprudencial de La Corte
Interamericana En Materia de Justiciabilidad de Los Derechos Económicos, Sociales, Culturales
y Ambientales a La Luz de Seis Sentencias Emitidas Entre 2017 y 2019’, Interamericanización
de los DESCA. El caso Cuscul Pivaral de la Corte IDH (Instituto Max Planck de Derecho
Comparado y Derecho Internacional Público, Instituto de Estudios Constitucionales del Estado
de Querétaro, Instituto de Investigaciones Jurídicas, Universidad Nacional Autónoma de México
2020) 102 .
27 Poblete Vilches et al Vs Chile Merits, Reparations and Costs (2018) Serie C No. 349 (Inter-American Court
of Human Rights) [106 y 110]; Vera Rojas et al Vs Chile, Preliminary Objections, Merits, Reparations
and Costs [2021] Inter-American Court of Human Rights Serie C No. 439 [124]; Cuscul Pivaral
et al Vs Guatemala, Preliminary Objections, Merits, Reparations and Costs (2018) Serie C No. 359 (Inter-
American Court of Human Rights) [97].
28 Cuscul Pivaral et al Vs. Guatemala, Preliminary Objections, Merits, Reparations and Costs (n 24) para 105;
Poblete Vilches et al Vs. Chile. Merits, Reparations and Costs (n 24) para 118.
29 Poblete Vilches et al Vs. Chile. Merits, Reparations and Costs (n 24) art 121; Cuscul Pivaral et al Vs. Guatemala,
Preliminary Objections, Merits, Reparations and Costs (n 24) para 106.
51 State Obligations under the Inter-American Human Rights System concerning Unhealthy Diets:
An Opportunity to Advance NCD Prevention in the English-Speaking Caribbean?
The right to health equally requires the provision of special care to vulnerable
and marginalized groups,
30
such as the adoption of special measures from an ethnic,
social and intercultural perspective, taking into consideration the discrimination
that many social groups have suered. On this subject, the Inter-American Court
has ruled that States must comply with their obligations to respect and ensure the
right to health, without discrimination for reasons of race, colour, sex, language,
religion, political or other opinion, national or social origin, economic status, birth,
or any other social condition31 and according to the general obligations of Articles
1.1 and 2 of the ACHR.32
To clarify the content of international obligations with respect to health, the
Inter-American Court has treated PAHO’s considerations and studies as “authoritative
reference[s]”.33 Notably, in order to prevent and treat NCDs, PAHO and WHO
have compiled interventions that states should implement to address NCDs.
These interventions are directed towards the detection, diagnosis, treatment and
care of NCDs,34 as well as towards the reduction and mitigation of risk factors
associated with NCDs.35
The right to health is a broad right which extends beyond the absence of illness
to include the underlying determinants, as the Inter-American Commission36 and
30 Cuscul Pivaral et al Vs. Guatemala, Preliminary Objections, Merits, Reparations and Costs (n 24) para 107.
31 Cuscul Pivaral et al Vs Guatemala, Preliminary Objections, Merits, Reparations and Costs (2018) Serie C No.
359 (Inter-American Court of Human Rights) [129]; Poblete Vilches et al Vs Chile Merits, Reparations
and Costs (2018) Serie C No. 349 (Inter-American Court of Human Rights) [127].ibid 129.
32 Article 1. Obligation to Respect Rights. 1. The States Parties to this Convention undertake to respect the
rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free
and full exercise of those rights and freedoms, without any discrimination for reasons of race, color,
sex, language, religion, political or other opinion, national or social origin, economic status, birth, or
any other social condition. 2. For the purposes of this Convention, “person” means every human being.
Article 2. Domestic Legal Eects. Where the exercise of any of the rights or freedoms referred to
in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake
to adopt, in accordance with their constitutional processes and the provisions of this Convention,
such legislative or other measures as may be necessary to give eect to those rights or freedoms.
33 Buzos Miskitos (Lemoth Morris et al) Vs Honduras Mertis [2021] Inter-American Court of Human
Rights Serie C No. 432 [84].
34 WHO, ‘WHO Package of Essential Noncommunicable Disease Interventions for Primary Health
Care’ (2020) 12.
eng.pdf?sequence=1&isAllowed=y>.
35 WHO, ‘WHO Package of Essential Noncommunicable Disease Interventions for Primary Health
Care’ (2020) 8
pdf?sequence=1&isAllowed=y>.
36 CIDH, ‘Pandemic and Human Rights in the Americas’ (2020) Resolution 1/2020 5
oas.org/en/iachr/decisions/pdf/Resolution-1-20-en.pdf>; Inter-American Commission of Human
Rights, ‘Report on Trans and Gender Diverse Persons and Their Economic, Social, Cultural and
52
State Obligations under the Inter-American Human Rights System concerning Unhealthy Diets:
An Opportunity to Advance NCD Prevention in the English-Speaking Caribbean?
the Inter-American Court
37
have stated. Furthermore, the underlying determinants
of health may be classied as social, commercial and environmental, among others.
All determinants may have a negative or positive impact on the enjoyment of the
right to health.
While the denition and content of health determinants are evolutionary in
nature,
38
there are nonetheless current working denitions. Social determinants are
dened by the WHO as the “non-medical factors that inuence health outcomes.”
39
Examples of social determinants include: income and social protection, food insecurity,
social inclusion, non-discrimination and access to aordable health services of decent
quality.40 Equally important are the commercial determinants of health that the
WHO denes as “the private sector activities that aect people’s health, directly or
indirectly, positively or negatively.”41 Commercial determinants of health impact a
range of NCD risk factors and health outcomes.
42
Finally, the WHO also considers
that environmental determinants are critical to health and includes among them
physical, chemical and biological factors.43 These determinants of health are also
interconnected to the enjoyment of other human rights.
Regardless of the national incorporation system and enforcement of international
human rights treaties, or the national recognition of the right to health within English-
Environmental Rights’ (2020) OEA/Ser.L/V/II. para 322 .oas.org/es/cidh/informes/
pdfs/PersonasTransDESCA-es.pdf>.
37 Cuscul Pivaral et al Vs. Guatemala, Preliminary Objections, Merits, Reparations and Costs (n
31) para 106; Advisory Opinion OC-23/17 The Environment and Human Rights (state obligations
in relation to the environment in the context of the protection and guarantee of the rights to
life and to personal integrity: interpretation and scope of articles 4(1) and 5(1) in relation to
articles 1(1) and 2 of the American Convention on Human Rights) [2017] Inter-American Court
of Human Rights Serie A No. 23 [110].
38 WHO, ‘Social and Environmental Determinants of Health and Health Inequalities in Europe:
Fact Sheet’ (2012) ts/pdf_le/0006/185217/Social-
and-environmental-determinants-Fact-Sheet.pdf>.
39 WHO, ‘Social Determinants of Health’
of-health#tab=tab_1>.
40 WHO, ‘Social and Environmental Determinants of Health and Health Inequalities in Europe:
Fact Sheet’ (2012)
environmental-determinants-Fact-Sheet.pdf>.
41 WHO, ‘Commercial Determinants of Health’ (March 2023)
fact-sheets/detail/commercial-determinants-of-health>.
42 CIDH, ‘Las Enfer medades No Transmisibles y Los Derechos Humanos En Las Américas’ (2023)
OEA/Ser.L/V/II. Doc. 192 paras 184 and 187 .oas.org/es/cidh/informes/
pdfs/2023/REDESCA_enfermedades_NoTransmisibles_DDHH_SPA.pdf>.
43 PAHO and WHO, ‘Environmental Determinants of Health’
environmental-determinants-health>.
53 The Use of Law to Advance the Caribbean’s NCD Prevention Agenda
– What Role for the Caribbean Court of Justice?
Speaking Caribbean States’ Constitutions, the explicit constitutional protection of
other rights, such as the right to life, can be used to advance the right to health.
1. Health-related rights in the Inter-American Human Rights System
Bearing in mind the interrelated and interdependent nature of human rights
generally,44 any eort to eectively promote and realize the right to health will
necessarily involve consideration of other human rights, such as the right to adequate
food, the right to water and the right to access to information.
a. The right to adequate food
The right to adequate food is explicitly contemplated in articles 12 and 15
of the Protocol of San Salvador and is justiciable by the Inter-American Court
under article 26 of the ACHR.45 Article 15, in particular, speaks to States’ duties to
“guarantee adequate nutrition for children.”46 Just as with the case of the right to
health, the Inter-American Court’s previous case law indirectly protected the right
to food by its connection with other rights, such as the right to life and the right to
humane treatment.47
The Inter-American Court has also ruled that food is essential for the enjoyment
of other rights,48 and as such, its content should be read in conjunction with other
rights protected by the ACHR, such as the right to health, the right to water and
the right to life. It should also be noted that, besides being an independent right, the
right to adequate food is also a precondition for the enjoyment of health.49
44 Cuscul Pivaral et al Vs. Guatemala, Preliminary Objections, Merits, Reparations and Costs (n
31) para 86; Poblete Vilches et al Vs. Chile. Merits, Reparations and Costs (n 31) para 100.
45 Indigenous Communities of the Lhaka Honhat (Our Land) Association Vs Argentina Merits, reparations and
costs [2020] Inter-American Court of Human Rights Serie C No. 400 [289].
46 Additional Protocol to the American Convention on Human Rights in the area of Economic,
Social and Cultural Rights ‘Protocol of San Salvador’.
47 Juvenile Reeducation Institute Vs Paraguay Preliminary Objections, Merits, Reparations and
Costs [2004] Inter-American Court of Human Rights Serie C No. 112 [166, 171, 176 and 201];
Vélez Loor Vs Panama Preliminary Objections, Merits, Reparations and Costs [2010] Inter-
American Court of Human Rights Serie C No. 218 198, 204 and 227; Indigenous Community
Yakye Axa Vs Paraguay Merits, Reparations and Costs [2005] Inter-American Court of Human
Rights Serie C No. 125 167, 175 and 177.
48 Indigenous Communities of the Lhaka Honhat (Our Land) Association Vs. Argentina. Merits, reparations and
costs (n 45) para 274.
49 Indigenous Communities of the Lhaka Honhat (Our Land) Association Vs Argentina Merits,
reparations and costs [2020] Inter-American Court of Human Rights Serie C No. 400 [216].
54
State Obligations under the Inter-American Human Rights System concerning Unhealthy Diets:
An Opportunity to Advance NCD Prevention in the English-Speaking Caribbean?
The Inter-American Court has ruled that the right to adequate food should
not be understood restrictively,50 that not all types of nutrition satisfy it,51 and that
elements such as acceptability, availability and accessibility should be considered.
In that regard, and according to the Inter-American Court and the CESCR, the
acceptability component of the right to adequate food includes the need to have foods
that are culturally appropriate for a specic group of consumers.52 The availability
component requires the provision of food in quantities and quality sucient to satisfy
“the dietary needs of individuals, free from adverse substances”.53 Consistent with the
recommendation of the former United Nations Special Rapporteur on the Right to
Food (UN Special Rapporteur on the Right to Food),
54
the Inter-American Court has
emphasized that the nutritional value of foods should be considered as a condition
for food safety and as a consideration for the absence of “adverse substances”.55
Like the CESCR, the Inter-American Court has also highlighted that the availability
element of the right to adequate food should be understood as the possibility to feed
oneself directly from natural resources or through “well-functioning distribution,
processing and market systems.”56 Additionally, under the accessibility component,
such foods should be accessible in sustainable ways that do not interfere with the
enjoyment of other human rights.57 Accessibility should encompass economic and
physical accessibility.58
b. The right to water
The right to water is protected by article 26 of the ACHR as it follows from the
provisions of the OAS Charter from which the right to water has been construed
50 ibid 254.
51 ibid 220.
52 ibid 220 and 274.
53 ibid 218.
54 Special Rapporteur on the right to food, Hilal Elver, ‘Right to Food’ (2016) A/71/282 para
74 .un.org/doc/UNDOC/GEN/N16/247/21/PDF/N1624721.
pdf ?OpenElement>.
55 Indigenous Communities of the Lhaka Honhat (Our Land) Association Vs. Argentina. Merits,
reparations and costs (n 49) para 218; Committee on Economic, Social and Cultural Rights,
‘CESCR General Comment No. 12: The Right to Adequate Food (Art. 11)’ (1999) E/C.12/1999/5
para 8 .
56 Indigenous Communities of the Lhaka Honhat (Our Land) Association Vs. Argentina. Merits, reparations and
costs (n 49) para 219; Committee on Economic, Social and Cultural Rights (n 55) para 12 y 13.
57 ibid 218.
58 Indigenous Communities of the Lhaka Honhat (Our Land) Association Vs. Argentina. Merits,
reparations and costs (n 49) para 219.
55 State Obligations under the Inter-American Human Rights System concerning Unhealthy Diets:
An Opportunity to Advance NCD Prevention in the English-Speaking Caribbean?
by the Inter-American Court.59 In addition, the OAS adopted resolutions 2349/07
and 2760/12 recognizing the right to water and acknowledging the interrelation
between the right to water and the right to health.60 Similarly, the Inter-American
Court and other human rights mechanisms have highlighted the relationship between
the right to water and other rights,61 such as the right to adequate food.62 The Inter-
American Court has also recognized that water should be treated as a social and
cultural good and not an economic one.
63
Furthermore, it has ruled that availability,
quality and accessibility should be met for this right to be fully realized.
64
Considering
the availability component, water supply for every person should be “sucient
and continuous for personal and domestic uses.”65 Quality requires that water for
personal and domestic use is safe, of an acceptable colour, odour and taste.66 As for
the accessibility element, one of the most pertinent dimensions is that water and
water facilities and services are accessible to everyone without discrimination.67
For the purpose of addressing water scarcity, other human rights mechanisms,
such as the current United Nations Special Rapporteur on the Human Right to Safe
Drinking Water and Sanitation have called on States to reduce the level of priority
given to private actors in its ability to access and consume water.
68
According to that
Special Rapporteur, there should be a gradual prioritization of the use of water
for certain activities. This implies that the consumption of water by private actors
should have less priority than its use to sustain life and maintain health, which should
have the highest preference.69
59 Indigenous Communities of the Lhaka Honhat (Our Land) Association Vs. Argentina. Merits, reparations and
costs (n 45) para 222.
60 ibid 224.
61 ibid 223.
62 ibid 228.
63 ibid 227.
64 ibid.
65 ibid.
66 ibid.
67 ibid.
68 See Special Rapporteur on the human rights to safe and drinking water and sanitation, Pedro
Arrojo Agudo, ‘Risks and Impacts of the Commodication and Financialization of Water on
the Human Rights to Safe Drinking Water and Sanitation’ A/76/159 3 and 11 .
ohchr.org/sites/default/les/Documents/Issues/Water/annual-reports/a-76-159-friendly-version.
pdf>.
69 See Special Rapporteur on the human rights to safe and drinking water and sanitation, Pedro
Arrojo Agudo, ‘Risks and Impacts of the Commodication and Financialization of Water on
the Human Rights to Safe Drinking Water and Sanitation’ A/76/159 3 and 11 .
ohchr.org/sites/default/les/Documents/Issues/Water/annual-reports/a-76-159-friendly-version.
pdf>.
56
State Obligations under the Inter-American Human Rights System concerning Unhealthy Diets:
An Opportunity to Advance NCD Prevention in the English-Speaking Caribbean?
c. The right to access to infor mation
The right to access to information is protected under article 13 of the ACHR
and includes the ability to seek, receive, and impart information and ideas of all
kinds.70 According to the Inter-American Commission, access to information is
guided by the principles of transparency, maximum disclosure, citizen engagement
and publicity.71 The Inter-American Court has stated that the right to access to
information is instrumental to other rights,
72
such as the right to health. States have
an obligation to ensure the right to access information so that individuals can make
informed decisions on courses of actions that have an eect on their bodies and
health.73 Additionally, States should provide information ex ocio, also known as an
“active transparency obligation”, on matters that may have a higher impact on the
enjoyment of the right to health.74 The prerogative to access information that has
an impact on health implies the right to receive known and available data on the
risks that the use or consumption of certain products have on health. States should
adopt measures to ensure that people have easy access to accurate information on
the harmful substances contained in certain food products, including through the
use of front-of-package warning labelling for products high in or with an excess of
critical nutrients75 associated with NCDs, as recommended by PAHO.76
2. States’ obligations in relation to the right to health and health-
related rights
The ACHR also encompasses States’ general obligations that are applicable to
the right to health and health-related rights. According to article 1.1 of the ACHR
States need to respect and to ensure human rights, and pursuant to article 2 states
70 Claude Reyes et al Vs Chile Merits, reparations and costs [2006] [61].
71 Inter-American Commission of Human Rights and Rapporteur on Freedom of Expression,
‘Special Study about the Access to Information’ (2007) para 3 .cidh.oas.org/
relatoria/section/estudio%20especial%20sobre%20el%20derecho%20de%20acceso%20a%20
la%20informacion.pdf>.
72 IV Vs Bolivia Preliminary objections, merits, reparations and costs [2016] Serie C No 329 (Inter-American
Court of Human Rights) [156].
73 ibid 155.
74 ibid 156.
75 Such as sodium, sugar and saturated and trans fats.
76 OMS, ‘Front-of-Package Labeling as a Policy Tool for the Prevention of Noncommunicable
Diseases in the Americas’ (2020) 12
PAHONMHRF200033_eng.pdf?sequence=6&isAllowed=y>.
57 State Obligations under the Inter-American Human Rights System concerning Unhealthy Diets:
An Opportunity to Advance NCD Prevention in the English-Speaking Caribbean?
must adopt legislative and other types of measures as needed to give eect to all of
the rights protected by the ACHR.
The Inter-American Human Rights System provides content for the obligations
to respect and ensure the free and full exercise of human rights, and for the duty
to adopt all types of measures needed. Firstly, the obligation to respect human
rights requires States to abstain from any practice or activity that infringes upon
them.77 Secondly, the obligation to ensure human rights requires States to organize
the government apparatus and all the structures through which public power is
exercised.
78
Therefore, States must prevent, investigate and punish any violation of
the rights recognized by the ACHR.79 Lastly, the duty to adopt measures requires
the creation of norms or practices that ensure such rights, and the elimination of
those that hinder the enjoyment of rights.80
As part of their obligation to ensure human rights, States must keep third parties
from infringing individuals’ human rights.
81
The obligation to ensure encompasses four
duties that are relevant in the context of NCD prevention and control, particularly
concerning actions by businesses: (i) duty to prevent human rights violations; (ii)
duty to regulate and adopt measures; (iii) duty to monitor; and (iv) duty investigate,
sanction and redress.
82
Considering the more recent case law of the Inter-American
Court around States’ obligations regarding corporate actions,
83
States’ have the duty
to regulate, supervise and monitor their actions and omissions. Even though States do
not have unlimited responsibility, the specic circumstances of a case must be assessed
in order to delineate States’ specic obligations.84 Particularly, the Inter-American
Court has ruled that States must regulate, supervise and monitor activities carried
77 Vera Rojas et al Vs. Chile, Preliminary Objections, Merits, Reparations and Costs (n 24) paras 91–92.
78 Velasquez Rodriguez Vs Honduras Fondo (1988) Serie C No. 4. (Inter-American Court of Human
Rights) [166].
79 ibid.
80 Buzos Miskitos (Lemoth Morris et al) Vs Honduras Merits [2021] Inter-American Court of
Human Rights Serie C No. 432 [45].
81 Guachalá Chimbo et al Vs Ecuador Merits, reparations and costs (2021) Serie C No. 423 (Inter-American
Court of Human Rights) [80].
82 Inter-American Commission of Human Rights, ‘Report Businesses and Human Rights: Inter-
American Standards of Human Rights’ (2019) OEA/Ser.L/V/II para 86
org/es/cidh/informes/pdfs/EmpresasDDHH.pdf>.
83 Vera Rojas et al Vs Chile, Preliminary Objections, Merits, Reparations and Costs [2021] Inter-
American Court of Human Rights Serie C No. 439 [89]; Buzos Miskitos (Lemoth Morris et al)
Vs. Honduras. Merits (n 80) para 46.
84 Vera Rojas et al Vs. Chile, Preliminary Objections, Merits, Reparations and Costs (n 83) para
83.
58
State Obligations under the Inter-American Human Rights System concerning Unhealthy Diets:
An Opportunity to Advance NCD Prevention in the English-Speaking Caribbean?
out by business entities that provide healthcare services,85 businesses activities that
involve “signicant risk to the life and integrity of persons under their jurisdiction”86
and private entities that carry out “certain activities…that entail signicant risks for
human health.”87
The content of the duty to regulate and adopt measures has also been analysed
by the Inter-American Court. It requires States to ensure that companies respect
human rights by enacting legal frameworks so that their actions do not negatively
impact society or the environment.
88
Under the regulations implemented by States,
companies, regardless of their size, industry, context or structure, must ensure that
their activities “do not cause or contribute to human rights violations, and they must
take steps to remedy said violations.”89 The duty to regulate also requires States to
ensure that companies regularly carry out due diligence activities that allow them
to identify and mitigate human rights risks,90 particularly those that pose a risk to
health.
91
The adopted norms should be enforced and their compliance supervised and
monitored by States, especially, as previously mentioned, when businesses activities
have an impact on health.92
As part of States´ obligation to ensure human rights, States need to acknowledge
and address the risks of having businesses intervene in the adoption and implementation
of regulations or public policies intended to prevent or control NCDs. Through
various reports, international organizations have identied an array of corrupt
practices of certain industries, such as undue inuence and conicts of interests.
This last one is mostly caused by their interventions in discussions of public health
measures regardless of the fact that they have a nancial interest at play and that
they are part of the cause of the issue to be addressed. For example, the WHO
expressed its concerns about conicts of interests caused by industry interference
hampering progress in the prevention and control of NCDs.93 In particular, the
85 ibid 89; Ximenes Lopes Vs. Brazil (n 26) para 89.
86 Buzos Miskitos (Lemoth Morris et al) Vs. Honduras. Merits (n 80) para 46; Case of the workers
of the reworks factory in Santo Antonio De Jesus and their families Vs Brazil [2020] Inter-
American Court of Human Rights Serie C No. 407 [118].
87 Gonzales Lluy et al Vs Ecuador (2015) Serie C No. 298 (Inter-American Court of Human Rights)
[178].
88 Buzos Miskitos (Lemoth Morris et al) Vs. Honduras. Mertis (n 32) para 51.
89 Vera Rojas et al Vs. Chile, Preliminary Objections, Merits, Reparations and Costs (n 24) para 84 y 85.
90 ibid.
91 Employees of the Santo Antônio de Jesus Fire Factory and their next of kin v Brazil Preliminary Exceptions,
Merits, Reparations and Costs [2020] [119].
92 ibid 120 and 121.
93 WHO, 74th World Health Assembly, ‘Political Declaration of the Third High-Level Meeting
59 State Obligations under the Inter-American Human Rights System concerning Unhealthy Diets:
An Opportunity to Advance NCD Prevention in the English-Speaking Caribbean?
World Health Assembly has identied industry interference from these industries:
tobacco, alcohol, highly processed food and breast-milk substitutes.94 Within the
range of policies implemented to prevent NCDs, the adoption of front-of-package
warning labels has been particularly targeted by the industry. For example, the
statement by the former United Nations Special Rapporteur on the Right to Health
on the adoption of front-of-package warning labelling acknowledged the food
and beverage industry’s eorts to delay, weaken or stop front-of-package warning
labelling regulations “by attempting to interfere or directly inuencing government
decision-making processes.”95
The eects of corrupt practices on the enjoyment of human rights have also
been addressed in the Inter-American Human Rights System. The Inter-American
Commission classied state capture as a form of corruption that is detrimental
to the enjoyment of human rights.96 State capture is dened as the intervention
of private actors that have the power to inuence the decision-making of State
authorities and obtain a benet, generating a situation of dependency.
97
The Inter-
American Commission also identied the pervasive eects that corrupt practices
have on the availability and quality of food products and water, particularly when
people who suer discrimination or live in vulnerable conditions are involved.98
More importantly, in its recent report ‘NCDs and Human Rights in the Americas’,
the Commission acknowledged the existence of corporate practices that hinder the
adoption and implementation of regulations and public policies, such as front-of-
pack warning labelling. In that report, the Commission also urged States to prevent
companies from unduly intervening in the adoption of public policies by approving
of the General Assembly on the Prevention and Control of Non-Communicable Diseases Mid-
Point Evaluation of the Implementation of the WHO Global Action Plan for the Prevention
and Control of Noncommunicable Diseases 2013–2020’ (2021) A74/10 Add.1 paras 26–27
94 ibid.
95 Dainius Pūras, ‘Statement by the UN Special Rapporteur on the Right to Health on the
Adoption of Front-of-Package Warning Labelling to Tackle NCDs’ .ohchr.org/
en/statements/2020/07/statement-un-special-rapporteur-right-health-adoption-front-package-
warning> accessed 18 May 2022.
96 Inter-American Commission of Human Rights, ‘Corruption and Human Rights’ (2019) OEA/
Ser.L/V/II para 109 .oas.org/es/cidh/informes/pdfs/CorrupcionDDHHES.pdf>.
97 Inter-American Commission of Human Rights, ‘Corruption and Human Rights’ (2019) OEA/
Ser.L/V/II para 109 .oas.org/es/cidh/informes/pdfs/CorrupcionDDHHES.pdf>.
98 ibid 173.
60
State Obligations under the Inter-American Human Rights System concerning Unhealthy Diets:
An Opportunity to Advance NCD Prevention in the English-Speaking Caribbean?
and enforcing regulations.99 The Commission also called on companies to abstain
from exercising such inuence.100
Regulations regarding third party actions and/or omissions must be supervised
and monitored by States. As for the duties to supervise and monitor, the Inter-
American Commission explicitly stated that the mechanism instituted to supervise the
enjoyment of economic, social, cultural and environmental rights, “must aim to full
the content of the elements of availability, accessibility, acceptability, and quality.”101
The eect of business activities is an important consideration when addressing
threats to health, such as those posed by NCDs. Certain commercial activities, such
as marketing and promotion of unhealthy foods, have an increased harmful eect on
health because of the way they contribute to higher consumption, particularly when
targeting vulnerable sectors of the population, such as children and persons living in
poverty.102 In fact, these commercial activities constitute commercial determinants
of health, since they are carried out by the private sector and have an impact on
health. According to the Inter-American Court, businesses should ensure that all
of their activities causing or contributing to violations of human rights are avoided
or rectied.
103
Specically, the Inter-American Commission has recognized that the
marketing of certain products, such as sugary drinks have pervasive consequences
on the health of certain groups, such as children.104 In that regard, in its report
‘NCDs and Human Rights in the Americas’ the Commission called on States
to restrict the publicity, marketing and sponsorship of certain products linked to
NCDs development, particularly when they have a pervasive impact on children.
105
Restrictions can include, among others, the reduction of the impact that marketing
strategies have on children in school food environments.106
Due to their impact on health and the signicant risks that their commercial
activities generate,
107
businesses that produce unhealthy foods should be monitored
and supervised by States, consistent with the Inter-American Court’s decisions dealing
99 Inter-American Commission of Human Rights (n 18) 143.
100 ibid 248 y 249.
101 Inter-American Commission of Human Rights, ‘Report Businesses and Human Rights: Inter-
American Standards of Human Rights’ (n 81) para 98.
102 WHO, ‘Marketing of Unhealthy Foods and Drinks’
of-unhealthy-foods/index.html>.
103 Vera Rojas et al Vs. Chile, Preliminary Objections, Merits, Reparations and Costs (n 24) para 85.
104 CIDH (n 36) para 244.
105 Inter-American Commission of Human Rights (n 18) 145.
106 ibid.
107 Gonzales Lluy et al Vs. Ecuador (n 87) para 178.
61 State Obligations under the Inter-American Human Rights System concerning Unhealthy Diets:
An Opportunity to Advance NCD Prevention in the English-Speaking Caribbean?
with other industries.108 The Inter-American Court has previously ruled that States
should act to ensure that private parties do not limit access to adequate food,109
which, as mentioned above, is a right whose enjoyment requires the satisfaction of
the elements of acceptability, availability and accessibility. These elements demand,
as previously mentioned, that food is culturally appropriate,110 free from adverse
substances111 and has nutritional value.112 Notably, States should ensure the right
to adequate food in conjunction with other rights, including the right to water, the
right to access to information and the right to health.
The content of the obligations to respect and ensure the right to health and
health-related rights are relevant to the English-speaking Caribbean even if some
States have not ratied the ACHR or other human rights treaties from the Inter-
American System, or if their national legal framework requires the incorporation
of international treaties into domestic law and such incorporation has not yet
occurred. Additionally, the content of the abovementioned rights and the obligations
are argumentative tools to promote an NCD prevention agenda, particularly when
addressing unhealthy diets.
3. NCD Prevention and Unhealthy Diets in the English-Speaking Caribbean
When discussing NCDs in the English-speaking Caribbean, it is worth bearing in
mind that unhealthy diet is one of the major risk factors driving the region’s alarming
rates of NCDs. While all aspects of the NCD agenda remain important areas for
action, in the past few years States in the English-speaking Caribbean have placed
particular emphasis on childhood obesity prevention through focusing their eorts
on the adoption of a regional standard for front-of-pack warning labels for pre-
packaged foods and implementation of school nutrition policies.
113
Notwithstanding
these eorts, which began as early as 2016 with Trinidad and Tobago’s ban on the
108 ibid 92.
109 Indigenous Communities of the Lhaka Honhat (Our Land) Association Vs. Argentina. Merits, reparations and
costs (n 45) para 221.
110 ibid 220 y 274.
111 ibid 218.
112 Indigenous Communities of the Lhaka Honhat (Our Land) Association Vs. Argentina. Merits,
reparations and costs (n 49) para 218; Committee on Economic, Social and Cultural Rights (n
55) para 8.
113 See Nicole D Foster, Andres Constantin and Shajoe J Lake, ‘Caricom’s Efforts to Tackle Unhealthy
Diets: A Cautionary Tale for Latin America’ (2022) 8 REI - Revista Estudos Institucionais 254,
11.
62
State Obligations under the Inter-American Human Rights System concerning Unhealthy Diets:
An Opportunity to Advance NCD Prevention in the English-Speaking Caribbean?
sale of sugar sweetened beverages in schools,114 the English-speaking Caribbean
remains signicantly behind Latin America in relation to comprehensive action to
regulate national food environments.
The origins of the region’s work on childhood obesity prevention, which is linked
to its broader NCD prevention agenda, can be traced back to September 2014
when the CARICOM Council for Human and Social Development approved the
Caribbean Public Health Agency’s Plan of Action for Promoting Healthy Weights in
the Caribbean: Prevention and Control of Childhood Obesity 2014 – 2019. Notably,
this Plan identied a core 6 Point Policy Package (6 PPP) consisting of mandatory
nutritional labelling of foods; regulation of the school feeding environment; reduction
of the marketing of unhealthy food to children; product reformulation to reduce
fat, salt and sugar levels; scal and trade measures; and promotion of fruit and
vegetable consumption for priority action.115 A decision was then made to begin
work on front-of-pack warning labels, since this was seen as having the ability to
provide meaningful momentum for the implementation of other elements of the 6
PPP, such as reducing marketing of unhealthy food to children.
Work on front-of-pack warning labels within CARICOM began in earnest in May
2018 under the auspices of the CARICOM Regional Organisation for Standards
and Quality (CROSQ). Unfortunately, despite extensive national consultations across
the region, to date, in large part due to industry push back, CARICOM Member
States have not as yet been able to secure the required number of votes for adoption
of the current draft label (a black, octagonal warning label) as the CARICOM
regional labelling standard.116 There has, however, been some limited progress in
114 ‘New School Rule in Trinidad and Tobago: No Sugary Drinks’ Caribbean Medical News (26 July
2017)
sugary-drinks/>; ‘Ban on Sale of Sweet Drinks in Schools as Trinidad & Tobago Faces Childhood
Obesity Epidemic’ Caribbean Medical News (30 January 2017)
com/2017/01/ban-on-sale-of-sweet-drinks-in-schools-as-trinidad-tobago-faces-childhood-
obesity-epidemic/#:~:text=The%20ban%20on%20soft%20drinks,government%20and%20
government%2Dassisted%20schools.>.Reference needed for Trinidad’s policy document re ssbs.
115 CARPHA, ‘Plan of Action for Promoting Healthy Weights in the Caribbean: Prevention and
Control of Childhood Obesity 2014 – 2019’ < https://carpha.org/Portals/0/xBlog/documents/
HealthyWeights.pdf> accessed 10 June 2023
CARPHA,‘6 Point Policy for Healthier Food Environments’ <https://carpha.org/Portals/0/
Documents/CARPHA_6_Point_Policy_for_Healthier_Food_Environments.pdf> accessed 10
June 2023.
116 Nicole Foster, Andres Constantin and Shajoe Lake, ‘Caricom’s Efforts to Tackle Unhealthy
Diets: A Cautionary Tale for Latin America’ (2022) 8(2) Journal of Institutional Studies 254 gives
further details of the CARICOM front of pack warning label process and the role of industry in
the process.
63 State Obligations under the Inter-American Human Rights System concerning Unhealthy Diets:
An Opportunity to Advance NCD Prevention in the English-Speaking Caribbean?
relation to nutrition policies - Barbados launched its school nutrition policy on 15
February 2023
117
and Belize launched its national nutrition policy on 8 June 2023,
118
both of which are aimed at improving the respective food environments from a
health perspective. Equally, since 2016, rst Trinidad and Tobago and then Jamaica,
imposed restrictions on the sale and marketing of sug ar-sweetened beverages within
schools. In 2022, CARICOM Ministers also committed to eliminate trans fats from
the region and from the national food chain by 31 December 2025. The overall
picture, however, remains disappointing as action on unhealthy diets by States in the
English-speaking Caribbean as a whole remains slow, incomplete and quite limited.
As with front-of-pack warning labels, the common obstacle to accelerated and more
comprehensive implementation of policies addressing the unhealthy school food
environments and that within the society more generally seems to be industry push
back, coupled with lack of political will in the face of strong industry opposition.
In this regard, the Inter-American standards outlined above provide useful food
for thought on how they might be used as an additional tool in the region’s NCD
prevention eorts, both to counter industry interference and to apply pressure on
States to take meaningful action domestically to advance the NCD agenda, particularly
regarding childhood obesity prevention.
4. Challenges and Opportunities for implementation within the English-
speaking Caribbean of standards developed in the Inter-American
Human Rights System
While all English-speaking Caribbean countries have written Constitutions,
which include a Bill of Rights, the rights guaranteed within those Bills of Rights
tend to be limited to civil and political rights, with ‘public health’ being mentioned
only in the context of potential limitations on said rights.119 Guyana’s Constitution
notably incorporates all the main human rights treaties into domestic law (i.e.
including treaties such as the International Covenant on Economic Social and
which provide for the right to health and related rights), however, these rights are not
117 Barbados Government Information Service, ‘Barbados School Nutrition Policy Ofcial Launch’
(15 February 2023) <https://www.youtube.com/watch?v=T9hhdZoWO1k> accessed 15 June
2023.
118 Government of Belize Press Ofce, ‘MOHW Launches the National Nutrition Policy’ <https://
www.pressofce.gov.bz/mohw-launches-the-national-nutrition-policy/> accessed 15 June 2023.
119 For example, Barbados Constitution Chapter III; Antigua & Barbuda Constitution Chapter II
and the Bahamas Constitution Chapter III.
64
State Obligations under the Inter-American Human Rights System concerning Unhealthy Diets:
An Opportunity to Advance NCD Prevention in the English-Speaking Caribbean?
directly enforceable domestically.
120
This general lack of specic, directly enforceable
language in English-speaking Caribbean Constitutions on the right to health and
related rights has meant that eorts to advance the NCD prevention and control
agenda from a human rights perspective have largely focused on the international
plane, looking to see how international law can positively inuence NCD prevention
and control work on the ground.
The international plane is also attractive because English-speaking Caribbean
countries are parties to many multilateral human rights treaties, particularly within
the UN system. Accordingly, of the 12 English-speaking CARICOM Member States,
all of them have ratied the CRC, and the Convention on Elimination of Racial
Discrimination, 11 have ratied the Convention on Elimination of All Forms of
Discrimination against Women, 10 have ratied the International Covenant on Civil
and Political Rights and the ICESCR, and 7 have ratied the Convention against
Torture and other Cruel, Inhuman or Degrading Treatment of Punishment.121 T he
picture is less positive, however, in relation to the Inter-American Human Rights
System. Of the 12 English-speaking CARICOM Member States that are also Member
States of the OAS, only four (Barbados, Dominica, Grenada and Jamaica) have ratied
the ACHR and none of these States have ratied the Protocol of San Salvador.122
The contrasting levels of engagement by English-speaking Caribbean States
within the UN and Inter-American Human Rights Systems reect English-speaking
Caribbean States’ traditional perception that the Inter-American System was
primarily concerned with Latin American interests and priorities and was therefore
of limited, if any, relevance to them. This perception has its roots in the Inter-
American Commission’s initial neglect of English-speaking Caribbean Member
States and their interests, coupled with the language barrier where much of the
documentation is available in Spanish only. Indeed, Auro Fraser commented that
between 1967 and 1981 there was no evidence that the Commission’s mandate was
taken seriously in relation to English-speaking Caribbean Member States, as there
were no on-site visits to the region, no specialized reports and no Commissioners from
the region during this initial period.
123
While the situation today is vastly improved,
120 Constitution of the Co-operative Republic of Guyana s154A.
121 UN Treaty Body Database <https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/treaty.
aspx> accessed 10 June 2023.
122 Inter-American Commission on Human Rights, ‘Current State of the Conventions and Protocols on
Human Rights, approved within the Inter-American System’ <www.cidh.org/annualrep/2004eng/
annex1.htm> accessed 10 June 2023.
123 Auro Fraser, ‘From Forgotten through Friction to the Future: The Evolving Relationship of the
Anglophone Caribbean and the Inter-American System of Human Rights’ (2006) 43 Revista
65 State Obligations under the Inter-American Human Rights System concerning Unhealthy Diets:
An Opportunity to Advance NCD Prevention in the English-Speaking Caribbean?
with greater engagement of the English-speaking Caribbean Member States on a
range of issues and regular appointment of English-speaking Caribbean nationals
to the Inter-American Commission, the region’s generally low rate of ratication
of Inter-American Human Rights System treaties remains an area of concern
as it restricts the applicability of these norms and standards to English-speaking
Caribbean States generally.
When discussing the potential impact of international human rights obligations
such as those reected in the Inter-American Human Rights System within the
English-speaking Caribbean, it is also important to bear in mind that these countries
are dualist States, meaning that even if the ratication rate for Inter-American
human rights treaties increases within the region, ratied treaties would not have
‘direct eect’ within the domestic plane – they would rst need to be incorporated
into domestic law through implementing legislation124 and lack of action in this
area is a problem across the region. This is not to say that international law in the
form of unincorporated treaties is completely irrelevant in the domestic sphere
within the English-speaking Caribbean, as it is well-established that courts will, as
far as possible, construe domestic law so as to avoid creating a breach of a State’s
international obligations.125 Equally, if there is ambiguity or uncertainty in later
domestic law, recourse can be had to the international treaty to resolve the ambiguity
or uncertainty.126 However, in the case of a clear conict between an unincorporated
treaty and domestic law, the domestic law will prevail, as stated in The Parlement
Belge case.127
The English-speaking Caribbean’s low ratication rate of Inter-American Human
Rights System treaties, coupled with the constraints imposed by their dualist tradition,
may seem to suggest that there is little prospect of utilizing the Inter-American System’s
human rights standards discussed above to advance the region’s NCD agenda. This,
however, is not the case. Firstly, as Professor Tracy Robinson recently pointed out:
“If we limit our focus to these stark well-known facts about the dierent levels
of State commitment in the IAHRS, we risk missing what we can learn from
IIDH 207, 213.
Fraser describes the relationship between the Anglophone Caribbean and the Inter-American
human rights system as moving from being ‘forgotten’ (1967-1980) to being within ‘peripheral
vision’ (1980 – 1993) to ‘engagement with confrontation’ (1994 – present).
126 Ibid.
127 (1879) 4 PD 129.
66
State Obligations under the Inter-American Human Rights System concerning Unhealthy Diets:
An Opportunity to Advance NCD Prevention in the English-Speaking Caribbean?
the already signicant impact of the IAHRS on the Anglophone Caribbean
and elsewhere…. [D]ialogue about universalization [should] look beyond
formal ratications of treaties by OAS states to include discussions of who
has access to the IAHRS and the breadth of the impact of the IAHRS on
the peoples of the Americas in all their diversity.”128
Secondly, starting with the Caribbean Court of Justice’s (CCJ) landmark decision
in Attorney General of Barbados et al v Boyce and Joseph,
129
one has witnessed an increasing
willingness of the judiciary in the English-speaking Caribbean to take account of
countries’ unincorporated international obligations in interpreting and applying
domestic law. This new approach has been characterized by a liberal reading of
the ‘protection of the law’ clause within English-speaking Caribbean Constitutions,
coupled with the concept of legitimate expectation. This new openness to international
law oer s hope that the Inter-American Human Rights System’s standards can
play a more prominent role within the English-speaking Caribbean, with greater
opportunity to leverage said standards to advance the NCD agenda, even in the
absence of specic, detailed Constitutional provisions addressing the right to health
and the related rights discussed above.
In Boyce v Joseph the CCJ had to determine whether Barbados was obliged to
defer execution of two condemned men until after their petitions within the Inter-
American Human Rights System were determined, notwithstanding the fact that
Barbados had not incorporated the ACHR into domestic law.130 In reaching its
decision that Barbados was in fact obliged to defer execution of the accused, the
CCJ relied on the right to protection of the law founded on the reference to the
rule of law contained in the opening words of Barbados’ Constitution, and linked
this to the accuseds’ legitimate expectation that their execution would be stayed
based on various statements made by the Barbados Government at the time of
ratifying the ACHR and its practice of allowing petitions to international bodies to
be processed prior to execution.131 The CCJ went a step further in The Maya Leaders
Alliance v Attorney General of Belize,132 a case dealing with Belize’s Maya population’s
customary land tenure rights, to hold that the right to the protection of the law
128 Tracy Robinson, ‘Orientación de la universalidad: El SIDH y el Caribe Anglófono’ APORTES
23 Logros y desafíos del Sistema Interamericano de Derechos Humanos Sept 2021 DPLF – Due
Process of Law Foundation, Washington DC) p 13 – 17.
129 [2006] CCJ3 (AJ).
130 [2006] CCJ3 (AJ).
131 Ibid at [118].
132 [2015] CCJ 15 (AJ).
67 State Obligations under the Inter-American Human Rights System concerning Unhealthy Diets:
An Opportunity to Advance NCD Prevention in the English-Speaking Caribbean?
encompasses a State›s international obligations.133 In the Maya Leaders Alliance case,
the CCJ specically mentioned the the Inter-American Commission’s 2004 Report
on Human Rights as relevant international law of particular signicance as well as
referencing decisions from the Inter-American Court such as such as Mayagna (Sumo)
Awas Tingni Community v Nicaragua134 and Indigenous Community Yakye Axa v Paraguay135
in reaching its decision in the case.136 In Stephen Alleyne v Commissioner of Police137, a case
concerning whether the oence of ‘rape’ under Barbados’ Sexual Oences Act
Cap. 154 included circumstances where a man raped another man, Justice Jamadar,
Judge of the CCJ, was even more explicit when he stated:
“In addition, and consistent with the principle of sovereignty, the task of
statutory interpretation in Barbados includes attending to the state’s declared
international undertakings through signed and subscribed international treaties
and legal instruments. Sovereignty in a constitutional democracy means that a
state that enters into treaty arrangements does so with full autonomy, intending
to mean what it represents to the world and its citizens as having been done.
The agency of the executive to act for the state in this regard is constitutionally
warranted, and the imprimatur of the Parliament is not a necessary requirement.
In this regard the pure notion of dualism that has its origins in
Parliamentary supremacy is arguably and conceptually tenuous.
The result is a constitutional impetus to interpret all domestic laws
in alignment with state undertaken international obligations and
commitments, an approach recognised and endorsed by this Court.”
138
While it is true that decisions of the CCJ in its appellate jurisdiction are only
binding, to date, on the ve CARICOM States that have accepted it as their nal
appellate court, it is also true that the other courts of the region have tended to treat
CCJ rulings as being highly persuasive, particularly where the text being examined
is identical or very similar.139 Two vivid examples of this are the recent decisions
of the Antigua and Barbuda and St Kitts and Nevis courts in Orden David et al v The
133 [2015] CCJ 15 (AJ) para 52 and 58.
134 IACHR Series C No 79.
135 IACHR Series C no 125.
136 [2015] CCJ 15 (AJ) para 8 and 50.
137 [2022] CCJ 2 (AJ).
138 Emphasis added.
139 These are Barbados, Belize, Dominica, Guyana and St Lucia.
68
State Obligations under the Inter-American Human Rights System concerning Unhealthy Diets:
An Opportunity to Advance NCD Prevention in the English-Speaking Caribbean?
Attorney General of Antigua and Barbuda140 and Jamal Jeers v The Attor ney General of St
Christopher and Nevis141 striking down anti-buggery legislation as unconstitutional. In
both these cases, the courts in question embraced and adopted the reasoning of the
CCJ in cases such as Quincy McEwan et al v The Attorney General of Guyana
142
in reaching
their ultimate conclusions, even though those decisions were not formally binding.
Overall, therefore there seems to be a merging of the areas of international
and domestic law in ways that were previously unheard of given these countries’
dualist status, with the ultimate result that human rights standards emerging from
the Inter-American Human Rights System now stand a much stronger chance of
application within an English-speaking Caribbean context, even in the absence of
incorporation into domestic law. It remains to be seen whether and how the CCJ will
continue to develop and consolidate the law in this area of the relationship between
international and domestic law
Finally, as was mentioned previously in the quote from Professor Tracy Robinson,
beyond the Inter-American petition and cases system and the treaties ratied, the
Inter-American Human Rights System as a whole oers other valuable engagement
opportunities which can also be utilised to strengthen and accelerate the English-
speaking Caribbean’s NCD prevention and control response related to unhealthy
diets. One example of this is the Inter-American Commission’s range of monitoring
and promotion activities such as making recommendations to governments, preparing
reports for the adoption of progressive measures in favour of human rights or on-
site visits.143
Conclusion
The above discussion demonstrates the connection between NCDs and human
rights in light of Inter-American Human Rights System’s standards regarding the
right to health and related rights. The most recently developed normative content of
the rights to health, adequate food, water and access information, among other rights,
coupled with the related obligations to respect and ensure these rights, in particular
in relation to the duty to regulate, supervise and monitor business activities, provide
a sound basis and act as an imperative for governments in the English-speaking
Caribbean to adopt comprehensive measures to reduce unhealthy diets. The above
142 [2018] CCJ 30 AJ
143 See American Convention on Human Rights art 41.
69 State Obligations under the Inter-American Human Rights System concerning Unhealthy Diets:
An Opportunity to Advance NCD Prevention in the English-Speaking Caribbean?
discussion has also shown the relevance of the Inter-American Human Rights System’s
standards to the issues the region is currently grappling with as it seeks to advance
its work on unhealthy diets, namely, issues such as industry interference and lack
of political will. Additionally, the fact that the Inter-American Commission issued
a thematic report on NCDs and human rights illustrates the general consensus on
the need to address the pervasiveness of NCDs and their risk factors in the region
of the Americas.
While traditionally developments within the Inter-American Human Rights
System were viewed as somewhat irrelevant to the English-speaking Caribbean due
to these States’ low level of participation and the constraints of dualism, this is no
longer the case. Innovative approaches to the relationship between international and
domestic law, driven primarily by CCJ, coupled with improved dialogue between
the English-speaking Caribbean and the Inter-American Commission, oer new
opportunities for these Inter-American human rights standards to potentially inuence
and accelerate action by governments the English-speaking Caribbean on unhealthy
diets. Moreover, the potential impact of the Inter-American Human Rights Systems
within the English-speaking Caribbean on the issue of unhealthy diets is not limited
to the governmental level, as Inter-American human rights case law, reports and
standards are also powerful argumentative and advocacy tools for civil society to use
to pressure their governments to take bold action to advance the NCD prevention
and control agenda as it relates to unhealthy diets and help secure the sustainable
development of their countries. Governments in the English-speaking Caribbean,
together with civil society actors are therefore encouraged to make full use of this
additional avenue for promoting and accelerating work in the area of regulation
of unhealthy diets.
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