The right to food in the context of natural disasters

The 2017 report entitled The State of Food Security and Nutrition in the World, of the Food and Agriculture Organization of the United Nations (FAO), declares that currently 815 million people (11 per cent of the global population) are affected by hunger, an increase from 777 million in 2015. This represents a drastic increase after a prolonged decline. Hunger kills more people every year than malaria, tuberculosis and AIDS combined. At this rate, it might be difficult to reach Sustainable Development Goal 2, which is aimed at achieving a world without hunger and malnutrition by 2030.

The main causes reversing the progress towards eliminating hunger are armed conflicts, natural disasters and climate change-induced extreme weather events, economic slowdown, and failure of effective social protection and poverty elimination policies. Often, all of the above reasons reinforce each other, creating severe food insecurity despite global cereal production and stocks being at historic highs.

Global warming triggers or prolongs natural disasters, causing significant effects on food security. In 2015 and 2016, drought caused by one of the harshest El Niño events on record led to significant crop and livestock losses in sub-Saharan Africa, affecting the livelihoods of farmers and agricultural communities; consecutive failed harvest seasons resulted in wide-scale dependence on food aid, high rates of debt and massive depletion of household seed supplies. African countries are particularly vulnerable to climate impacts on agriculture, since less than 5 per cent of the continent’s cropped area is irrigated.

Severe floods in 2017 continued to affect at least 8 million people, causing deaths and injuries, loss of livestock and food supplies, and damage to housing and farming infrastructure. Besides destroying food supplies and sources, such disasters also impact the food production system as a whole, affecting food prices, and have important consequences on communities’ livelihoods. Such situations are likely to continue to affect a large number of people, given that 80 per cent of hungry people currently live in disaster-prone and environmentally degraded areas.¹

1. See https://www.wfp.org/content/how-disasters-drive-hunger. ↩

Although the immediate obligation to provide food, water, shelter and medical aid is the duty of governments, in times of emergency the international community has the responsibility to help countries in dire situations. It is clearly asserted in general comment No. 12 (1999) on the right to adequate food, of the Committee on Economic, Social and Cultural Rights, that States are obliged to provide disaster relief and humanitarian assistance in times of emergency. These responsibilities are universal, normative and ethical, and are also essential to sustainable world peace, which can only be achievable when hunger and malnutrition are eliminated.

In recent decades, the international humanitarian response system has been essential in reducing the negative effects of conflict and natural disasters on food security and in lowering death tolls. While it is larger than ever in terms of financial and human resources, concurrent major emergencies have overstretched its humanitarian operational capacity and ability to meet global demands.

According to FAO, worldwide economic losses from natural disasters have reached a staggering average of $250 billion to $300 billion a year. Yet, we know comparatively little about the full impact of such disasters on the agricultural sectors.

The World Food Programme (WFP) estimates that food aid expenditures more than doubled between 2009 and 2016, from $2.2 billion to $5.3 billion. Even though international food assistance has risen in response to escalating humanitarian crises, it still falls about $3 billion short. Almost all foreign aid for food security goes to short-term relief operations just to keep people alive, therefore there are no available funds devoted to agricultural investment and rural development, which could raise the quality of food security and build resilience in regions vulnerable to climate change and conflict crises.² According to the World Bank, natural disasters push 26 million people into poverty each year, eroding development gains and increasing dependency on aid.³

2. Rosamond L. Naylor, “The elusive goal of global food security”, Current History (January 2018). ↩
3. World Bank, Unbreakable: Building the Resilience of the Poor in the Face of Natural Disasters, (Washington, 2017). ↩

Although encouraging pledges were made at the World Humanitarian Summit in 2016 to address shortcomings of humanitarian assistance, due to the recent increase in the number of such disasters and conflicts, the humanitarian emergency system has been experiencing difficulties, including a dire funding gap, and challenges in terms of leadership, coordination, functionality and efficiency. However, it is important to underline that regarding food assistance in particular, efforts have been made in recent decades to deliver more context-specific food aid, to increase local participation and avoid dependency or the disruption of local food systems, and to implement a human rights-based approach to disaster relief efforts.

Following the Special Rapporteur’s interim report devoted to the humanitarian system and the right to food in conflict situations (A/72/188), the present report focuses on the right to food in the context of natural disasters. Based on country-specific examples of extreme weather events, such as droughts, desertification and floods, as well as sudden disasters such as hurricanes, wildfires, tsunamis and earthquakes, the report evaluates the direct and indirect impact on the right to food and on people’s livelihoods, how these events contribute to hunger, and what should be done to reduce human rights violations and long-term resource depletion. The Special Rapporteur concludes that despite some of the positive outcomes of the World Humanitarian Summit, there is a need to improve preparedness and to ensure that greater attention is paid to building the resilience of the most affected and vulnerable communities as well as to establishing sustainable food systems. The report also highlights the importance of achieving a real convergence between emergency food aid, food assistance and development cooperation, while ensuring that the right to food both of individuals and of communities is met not only by short-term responses to emergency situations but also with due regard for long-term impacts. In order to achieve these goals, the common understanding among donor communities that humanitarian responses are currently treated as voluntary acts should be replaced by negotiating a legal obligation in the form of a comprehensive, multilateral treaty of general application.

Natural disasters and climate change are closely linked. The negative impact of climate change, such as global warming, not only hampers crop, livestock, fisheries and aquaculture productivity, but also influences the frequency of extreme weather events and natural hazards.⁴ Those events are expected to become more frequent in coming years, and according to predictions their strength and magnitude are likely to intensify.

4. See A/70/287, p. 4. ↩

Intensification and recurrence of natural disasters also magnify their impacts on populations, thereby risking impairment of human rights given that “more frequent and intense extreme weather events will also complicate the logistics of food distribution during emergencies”.⁵

5. Ibid. ↩

The years 2015 and 2016 were especially difficult in terms of serious natural disasters. El Niño had devastating effects on countries throughout Southern Africa, leaving 12 million people food insecure.⁶ In 2016, El Niño reduced rainfall, causing intense and prolonged droughts in some areas, while heavy rains in other areas created catastrophic floods. These conditions had severe impacts on crop production, livestock, and agricultural livelihoods, reduced agricultural trade and led to food price spikes, especially in countries with inadequate capacities to respond and among populations characterized by low resilience.⁷

6. Food Security Information Network, Global Report on Food Crises 2017. ↩
7. Ibid., p. 18. ↩

The Secretary-General of the United Nations appointed two special envoys to investigate the impact of El Niño and climate change. Their report asserts that the El Niño episode “severely affected more than 60 million people around the world” and “led 23 countries to appeal for international humanitarian assistance in East and Southern Africa, Central America, the Caribbean and the Pacific. The most vulnerable groups bore the brunt of the emergency, including women, children, the elderly, the disabled and people living with HIV/AIDS.”⁸

8. “Preventing El Niño Southern Oscillation episodes from becoming disasters: a ‘blueprint for action’” (2016), p. 2. ↩

In times of disaster, while the impacts on food availability are often of immediate concern, the gradual effects of natural hazards on accessibility, adequacy and sustainability are of equal importance — they may be less visible and yet more enduring.

The agricultural sector and its subsectors are very important for rural people, who farm for both food consumption and income. Although the main impacts vary significantly, depending on the kind of disaster and the region, the total percentage of losses and damage absorbed by the agriculture sector in developing countries has been estimated to be 22 per cent.⁹ While crops are more likely to be destroyed by floods and storms, livestock is usually affected by droughts, and the fisheries and aquaculture sector is affected the most by storms, hurricanes and cyclones. At the regional level, drought was at its most harmful in sub-Saharan Africa and the Near East; whereas Asia and Latin American and Caribbean countries were most affected by floods.¹⁰

9. FAO, The Impact of Disasters on Agriculture and Food Security (Rome, 2015), p. 11, available at www.fao.org/3/a-i5128e.pdf. ↩
10. Ibid., p. 31. ↩

Natural disasters also destroy essential infrastructure, tools and equipment, irrigation systems, livestock shelters and veterinary facilities. During Hurricane Matthew in Haiti, in some of the worst affected regions, close to 100 per cent of the crops were destroyed.¹¹ In Puerto Rico, “Hurricane Maria wiped out most of the island’s crops. Banana and coffee — the island’s most valuable exports — were the hardest hit.” Due to the storm, the population faced “immediate food shortages but also long-term consequences from the destruction of the entire agricultural infrastructure”.¹²

11. See https://wfp-americas.exposure.co/a-timeline-of-wfps-response-to-hurricane-matthew-in-haiti. ↩
12. See www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=22326&LangID=E. ↩

In the context of tsunamis or hurricanes, for example, workers in the fishing sector are themselves at serious risk, while their tools and boats face damage or the risk of being washed away. Following the 2004 tsunami, it was reported that in the Indonesian province of Aceh around 10 per cent of fisherfolk had been killed. In addition, estimates showed that 50 per cent of fishing boats had been either damaged or lost.¹³ Following her country visit to the Philippines in 2014 after typhoon Haiyan, the Special Rapporteur reported that fisheries production in the country had declined significantly.¹⁴

13. FAO, “An Overview of the Impact of the Tsunami on Selected Coastal Fisheries Resources in Sri Lanka and Indonesia” (Bangkok, 2007), p. 31. ↩
14. See A/HRC/31/51/Add.1. ↩

The impact of extreme weather events and droughts also affects livestock — from spreading disease to loss of animals. Recent droughts in Ethiopia in 2016 resulted in a high rate of livestock morbidity and mortality, as well as a modification of animals’ migration patterns.¹⁵ In Malawi, drought induced by El Niño impacted the production of various 7 Ibid., p. 18. 8 “Preventing El Niño Southern Oscillation episodes from becoming disasters: a ‘blueprint for action’” (2016), p. 2. 9 FAO, The Impact of Disasters on Agriculture and Food Security (Rome, 2015), p. 11, available at www.fao.org/3/a-i5128e.pdf. 10 Ibid., p. 31. 11 See https://wfp-americas.exposure.co/a-timeline-of-wfps-response-to-hurricane-matthew-in-haiti. 12 See www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=22326&LangID=E. 13 FAO, “An Overview of the Impact of the Tsunami on Selected Coastal Fisheries Resources in Sri Lanka and Indonesia” (Bangkok, 2007), p. 31. 14 See A/HRC/31/51/Add.1. 15 FAO, El Niño Response Plan 2016, p. 10, available at www.fao.org/fileadmin/user_upload/emergencies/docs/FAO-Ethiopia-ElNino-Response-Plan2016.pdf; and FAO, “Ethiopia situation report — April 2016”, available at cereals, including maize, rice, sorghum and millet, leading to significantly below-average levels of crop production for 2015 and¹⁶ 2016.16

15. FAO, El Niño Response Plan 2016, p. 10, available at www.fao.org/fileadmin/user_upload/emergencies/docs/FAO-Ethiopia-ElNino-Response-Plan-2016.pdf; and FAO, “Ethiopia situation report — April 2016”, available at www.fao.org/fileadmin/user_upload/emergencies/docs/FAO%20Ethiopia%20Situation%20Report%20-%20April%202016.pdf. ↩
16. Food Security Information Network, Global Report on Food Crises 2017, p. 83. ↩

Seeds are essential to ensure the next planting seasons and future harvests. If not well protected, seeds are likely to be either damaged or completely destroyed.¹⁷ Floods can damage seed storing facilities, and the seeds themselves may become wet, thus jeopardizing their potential use. After the earthquake in Nepal in 2015, it was reported that many seeds had been damaged or lost and that storage facilities had been damaged.¹⁸

17. Tejendra Chapagain and Manish N. Raizada, “Impacts of natural disasters on smallholder farmers: gaps and recommendations”, Agriculture and Food Security, vol. 6, No. 1 (2017). ↩
18. See http://nepal.unfpa.org/sites/default/files/pub-pdf/PDNA_volume_BFinalVersion.pdf. ↩

Natural disasters affect access to food in a number of ways. They contribute to food price inflation in local markets because of scarcity of commodities. They may also lead to increased unemployment or declining wages for farm workers, thus diminishing their purchasing power.¹⁹ Such developments produce an erosion of livelihood, especially in rural areas.

19. FAO, The Impact of Disasters on Agriculture and Food Security. ↩

In Pakistan in 2010, intense monsoons induced floods, which affected more than 20 million people and seriously impacted the circulation of food commodities inside the country as both roads and the rail network had been damaged.²⁰ In addition, in some regions a reduction in market capacity was reported, because market sellers’ vending and storage facilities had been damaged by the floods.²¹

20. WFP, “Pakistan flood impact assessment” (2010), p. 8, available at http://documents.wfp.org/stellent/groups/public/documents/ena/wfp225987.pdf. ↩
21. Ibid., p. 9. ↩

In Lesotho in 2016, El Niño-related drought disturbed the harvest season, leading to low production and food price inflation. In this context, the pressures on livelihoods pushed many households to borrow or to obtain credit in order to buy food, and even drove people to resort to illegal activities.²²

22. Food Security Information Network, Global Report on Food Crises 2017, p. 75. ↩

In 2015 and 2016 in Ethiopia, food insecurity, partly caused by El Niño, prolonged intense drought, pushed many small-scale farmers to use last-resort coping strategies such as selling their livestock and agricultural assets.²³ Negative coping strategies have long-term consequences on achieving the right to food. When assets are lost, the already low capacity of small-scale farmers and fisherfolk to invest in quality equipment or seeds may be negatively affected. Some may not be able to reinvest in such assets due to the absence of insurance or the unavailability of credit, and others may decide to go for less sustainable options as regards crop choice or agricultural technology.²⁴

23. Ibid., p. 28. ↩
24. Anastasia Telesetsky, “An evolving role for law and policy in addressing food security before, during and after a disaster”, Research Handbook on Disasters and International Law, Susan C. Breau and Katja L.H. Samuel, eds. (Edward Elgar, 2016), p. 265. ↩

Adequacy requires that food satisfy dietary needs (factoring in a person’s age, living conditions, health, occupation, sex etc.) and that it be safe for human consumption, free of adverse substances, culturally acceptable and nutritious. Natural disasters negatively affect food adequacy, especially by potentially causing reductions in the quality of food consumed, which increases prospects of malnutrition.

As will be discussed further in the present report, when a natural disaster hits poor communities, the nutritional status of children is a major concern, both in the immediate www.fao.org/fileadmin/user_upload/emergencies/docs/FAO%20Ethiopia%20Situation%20Report%2 0-%20April%202016.pdf. 16 Food Security Information Network, Global Report on Food Crises 2017, p. 83. 17 Tejendra Chapagain and Manish N. Raizada, “Impacts of natural disasters on smallholder farmers: gaps and recommendations”, Agriculture and Food Security, vol. 6, No. 1 (2017). 18 See http://nepal.unfpa.org/sites/default/files/pub-pdf/PDNA_volume_BFinalVersion.pdf. 19 FAO, The Impact of Disasters on Agriculture and Food Security. 20 WFP, “Pakistan flood impact assessment” (2010), p. 8, available at http://documents.wfp.org/stellent/groups/public/documents/ena/wfp225987.pdf. 21 Ibid., p. 9. 22 Food Security Information Network, Global Report on Food Crises 2017, p. 75. 23 Ibid., p. 28. 24 Anastasia Telesetsky, “An evolving role for law and policy in addressing food security before, during and after a disaster”, Research Handbook on Disasters and International Law, Susan C. Breau and Katja L.H. Samuel, eds. (Edward Elgar, 2016), p. 265. aftermath and over the long term. According to WFP, more than 20 per cent of the variation in height in developing countries is determined by environmental factors, particularly by droughts since these have a severe impact on dietary diversity and reduce overall food consumption.²⁵

25. See www.wfp.org/disaster-risk-reduction/how-disasters-affect-hunger. ↩

Following many kinds of natural disasters, food in the affected areas may become contaminated, with an increase in the risk of foodborne diseases. Poor sanitation, lack of clean water, destruction of infrastructure and lack of suitable conditions for preparing food have led to mass outbreaks of foodborne diseases.²⁶ Crops can also be contaminated by heavy metals, chemicals, bacteria and mould. In many cases, it is difficult to determine which contaminants are in crops submerged in floodwater.²⁷

26. World Health Organization, “Ensuring food safety in the aftermath of natural disasters”, available at www.searo.who.int/entity/emergencies/documents/guidelines_for_health_emergency_fsadvice_tsunami.pdf?ua=1. ↩
27. See www.fda.gov/Food/RecallsOutbreaksEmergencies/Emergencies/ucm112723.htm. ↩

Natural disasters can have a long-term impact on the right to food by threatening key environmental resources and entire ecosystems that are vital for sustainable food production. Contamination of soil and water is an important environmental impact of storms, tsunamis and floods. Salinization of water bodies such as rivers, wells, inland lakes and groundwater aquifers affects the fertility of agricultural lands, which reduces crop yields in the medium and long term.²⁸

28. See www.sms-tsunami-warning.com/pages/tsunami-effects#.Wiqg_PlN-k4. ↩

Disasters also reduce nature’s defence capacity, amplifying the impacts of future hazards. The disappearance of natural barriers, such as forests that provide protection against wind, and mangroves that stave off erosion, are likely to increase the exposure of certain areas to natural hazards.²⁹ FAO reported that following the floods in Pakistan in 2010, the impact on natural resources included “damaged or destroyed trees, forests and forestlands, plantations, forest nurseries, mangroves, wetlands, wildlife resources and other natural assets that sustain agriculture and livelihoods”.³⁰

29. FAO, The Impact of Disasters on Agriculture and Food Security, p. 17. ↩
30. Ibid., p. 22. ↩

Landslides cause significant damage to soil, agricultural infrastructure, seeds and food stocks. Prevention measures such as forest conservation activities or watershed management are important to cope with such situations and prevent erosion.³¹

31. See www.fao.org/emergencies/emergency-types/landslides/en/. ↩

Biodiversity is essential for the preservation of ecosystems. As highlighted in a recent report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, “biodiversity is especially crucial to the stability and resilience of food sources” and contributes to overall food security.³² While erosion of biodiversity is among the consequences affecting ecosystems in times of disaster, a rich biodiversity “can play a crucial role in disaster risk management before, during and after an event by fostering resistance, building resilience and assisting recovery”.³³ Also, direct loss of biodiversity may lessen the availability of wild foods — a coping strategy relied upon by some in response to disasters.³⁴

32. See A/HRC/34/49, para. 19. ↩
33. See http://apps.who.int/iris/bitstream/10665/174012/1/9789241508537_eng.pdf. ↩
34. Ibid. ↩

Resilience can be built by providing livestock assistance at the onset of emergencies, for instance through vaccination services and by providing mobile feeding stations to facilitate herd mobility. Disbursement of seed banks to help restore farmers’ seed systems can also form an effective part of an emergency response, as can facilitating the establishment of microgardens to allow displaced families to cultivate food wherever they 25 See www.wfp.org/disaster-risk-reduction/how-disasters-affect-hunger. 26 World Health Organization, “Ensuring food safety in the aftermath of natural disasters”, available at www.searo.who.int/entity/emergencies/documents/guidelines_for_health_emergency_fsadvice_tsuna mi.pdf?ua=1. 27 See www.fda.gov/Food/RecallsOutbreaksEmergencies/Emergencies/ucm112723.htm. 28 See www.sms-tsunami-warning.com/pages/tsunami-effects#.Wiqg_PlN-k4. 29 FAO, The Impact of Disasters on Agriculture and Food Security, p. 17. 30 Ibid., p. 22. 31 See www.fao.org/emergencies/emergency-types/landslides/en/. 32 See A/HRC/34/49, para. 19. 33 See http://apps.who.int/iris/bitstream/10665/174012/1/9789241508537_eng.pdf. 34 Ibid. are, often without having to acquire additional land (e.g. a “garden on the roof” or a “garden in a bag”).

Providing fishing equipment and training has also proven helpful to people trapped in conflict or natural disasters, who are forced to acquire their own food. Other initiatives focus on ensuring the continued functioning of markets — for example by encouraging traders and providing support to them to supply essential food items and strengthen delivery networks, or by investing in irrigation projects to help sustain agricultural and pastoral livelihoods during times of crisis.

Natural disasters affect the most vulnerable in a disproportionate manner, making the enjoyment of the right to food in disaster and post-disasters contexts even more challenging for those with special needs. More than 75 per cent of the world’s poor depend directly on natural resources to sustain their livelihoods.³⁵ These people have limited savings, depend on agriculture for a living and face increasing exposure to disaster risks. According to the World Bank, poor people are typically more exposed to natural hazards, lose a greater portion of their wealth and are often unable to draw on support from family, friends, financial systems, or even from their government.³⁶

35. FAO, The Future of Food and Agriculture: Trends and Challenges (Rome, 2017), p. 68, available at www.fao.org/3/a-i6583e.pdf. ↩
36. World Bank, Unbreakable, p. 26. ↩

In particular, marginalized local and traditional communities, such as nomadic and indigenous peoples, as well as peasants, are affected by denial of access to land, fishing and hunting; deprivation of access to adequate and culturally acceptable foods; loss of traditional knowledge; and loss of biodiversity and degraded ecosystems.

Subsistence farmers, peasants and indigenous communities tend to be dependent on the lowest-quality land, including hillsides, deserts and floodplains, and often already suffer from chronic food insecurity. They also might not have access to formal social safety nets. In the face of natural disasters, individuals and communities that are already vulnerable have less capacity to cope with natural disasters, and may have to incur crippling debts and resort to other more extreme measures.

People with disabilities, the elderly, people living with HIV/AIDS or those who are ill and living in poverty, as well as internally displaced people, migrants and refugees, are exceptionally vulnerable. Natural disasters are one of the major reasons that people leave their homes in search of liveable conditions, often becoming refugees. In her prior report, the Special Rapporteur paid specific attention to internally displaced persons and refugees in the context of conflicts, highlighting potential additional consequences on host communities and affirming that those fleeing were “often forced to leave behind their assets” and their “economic independence may be hampered by the costs of transit, few income opportunities and limited rights in the host State”.

Children face acute vulnerability due to their inherently limited access to food, as they rely on caregivers to ensure their daily food intake, especially in the first 1,000 days of their life.³⁷ Appropriate nutrition during this window is vital in order to overcome life-threatening childhood diseases.³⁸ During natural disasters, household income may be seriously diminished, thus affecting caregivers’ capacity to fulfil children’s basic nutritional needs.

37. Carolyn Kousky, “The future of children”, Children and Climate Change, vol. 26, No. 1 (2016),pp. 73–92, see pp. 75–76. ↩
38. See A/71/282, p. 5. ↩

According to the United Nations Children’s Fund (UNICEF), “an estimated 535 million children — nearly one in four — live in countries affected by conflict or disaster, often without access to medical care, quality education, proper nutrition and protection”.³⁹ Children who lack adequate nutriments and vitamins may have long-term impacts on their development and adult life, including impairment of their immune systems that leads to disease, long-term illness or death. In addition, malnourishment exacerbates children’s vulnerability to natural disasters.⁴⁰

39. See www.unicef.org/media/media_93863.html. ↩
40. UNICEF, Children’s Vulnerability to Climate Change and Disaster Impacts in East Asia and the Pacific (Bangkok, 2011); see also A/71/282, p. 4. ↩

For example, a study has shown that in Peru, after the heavy rainfalls induced by the 1997–1999 El Niño episode, children experienced inadequate growth.⁴¹ The same study also showed that in those areas, at the time of the disasters, households experienced many challenges, including food shortages, lack of adequate health care, lack of clean water, increases in malaria and diarrhoeal diseases, and loss of crops and livestock which led to reduced income.⁴²

41. See Carolyn Kousky, p. 79; and Heather E. Danysh and others, “El Niño adversely affected childhood stature and lean mass in northern Peru”, Climate Change Response 1 (2014), pp. 1–10. ↩
42. Heather E. Danysh and others, “El Niño adversely affected childhood stature and lean mass in northern Peru”. ↩

In the Philippines over the last two decades, 15 times more infants have died in the 24 months following typhoon events than as a result of the typhoons themselves — most of whom were infant girls.⁴³

43. See www.wfp.org/disaster-risk-reduction/how-disasters-affect-hunger. ↩

In November 2017, Viet Nam was hit by a major typhoon that caused direct impacts on the nutritional status of 150,000 children.

Studies from Bangladesh show increased wasting and stunting rates among preschool children after floods, due to reduced access to food, increased difficulties in providing proper care and greater exposure to contaminants.⁴⁴

44. Ibid. ↩

According to WFP in Zambia, children born in drought conditions are up to 12 per cent more likely to have below-average height and weight than children born in non-crisis years.

In Madagascar, in the summer of 2016, UNICEF reported that “the nutritional status of children (was) still challenged by drought and post-drought conditions”. Given limited rainfall, the population faced special challenges — such as puddles where the population collected scarce, yet contaminated, water.⁴⁵

45. UNICEF, “Madagascar: El Niño drought, humanitarian situation report No. 2” (July 2016). ↩

Moreover, as a consequence of natural disasters, poor children are likely to be taken out of or prevented from going to school, and pushed into the workforce. After Hurricane Mitch in 1998, in Nicaragua, it was demonstrated that labour force participation increased by 58 per cent (an increase of 8.5 percentage points) among children in areas affected by the hurricane.⁴⁶

46. See Carolyn Kousky, p. 86. ↩

Women and girls worldwide already face many inequalities that are embedded in social practices and laws, constraining their access to resources and affecting their food security and nutrition.

As the Special Rapporteur mentioned in her 2016 report (A/HRC/31/51), the vulnerability of women is higher than that of men in post-disaster contexts. In times of natural disaster, women’s household responsibilities increase while access to resources decreases. The daily work involved in providing food, water and fuel for households after a disaster requires intensive labour, the bulk of which is borne by women. In many rural areas, women and girls spend the majority of their time engaged in subsistence farming and the 39 See www.unicef.org/media/media_93863.html. 40 UNICEF, Children’s Vulnerability to Climate Change and Disaster Impacts in East Asia and the Pacific (Bangkok, 2011); see also A/71/282, p. 4. 41 See Carolyn Kousky, p. 79; and Heather E. Danysh and others, “El Niño adversely affected childhood stature and lean mass in northern Peru”, Climate Change Response 1 (2014), pp. 1–10. 42 Heather E. Danysh and others, “El Niño adversely affected childhood stature and lean mass in northern Peru”. 43 See www.wfp.org/disaster-risk-reduction/how-disasters-affect-hunger. 44 Ibid. 45 UNICEF, “Madagascar: El Niño drought, humanitarian situation report No. 2” (July 2016). 46 See Carolyn Kousky, p. 86. collection of water and fuel. As a result of disasters, these tasks become more timeconsuming.

During the 2015 earthquakes in Nepal, the impact on the traditional division of roles tended to intensify, making the workload of women even greater in a country where women already work up to 16 hours a day.⁴⁷ This, in turn, decreases the time available for food production and preparation, and threatens women’s health and safety, with consequences for household food security and nutritional well-being.⁴⁸

47. See http://norlha.org/wp-content/uploads/2015/04/Impact_of_natural_disaster_on_girls_and_women_Norlha_June_2015.pdf. ↩
48. World Bank, FAO, International Fund for Agricultural Development, Gender in Agriculture Sourcebook (Washington, 2009), pp. 455–456. ↩

Impacts of decreased water quality as a result of disasters are also gender-differentiated. Women are more physically vulnerable to waterborne diseases due to their role in supplying household water and responsibility for domestic chores. Decreased water resources may also cause women’s health to suffer as a result of the increased work burden and reduced nutritional status. For instance, in Peru following the 1997/98 El Niño event, malnutrition among women was a major cause of peripartum illness.⁴⁹

49. See A/70/287. ↩

It is also important to highlight the fact that climate change itself intensifies psychological stress associated with disasters, increasing women’s risks of situations of violence, sexual harassment and trafficking. Because women are forced into prostitution, an increased HIV prevalence exists in drought-ridden areas of rural Africa.⁵⁰

50. Marshall Burke, Erick Gong and Kelly Jones, “Income shocks and HIV in Africa”, The Economic Journal, vol. 125, issue 585 (2015), pp. 1157–1189. ↩

Women in refugee camps or in situations where they are internally displaced experience particular difficulties. Women cannot easily flee disasters or dangerous areas when they are pregnant, responsible for children and elderly people or restrained by social mores that inhibit their presence in public spaces or demand restrictive dress. If they do escape the immediate disaster area, women are vulnerable to abuse in camps for refugees or internally displaced persons, including increased risk of sexual and gender-based violence, unequal access to training and economic opportunities, and little or poor reproductive health care. Pre-existing patterns of discrimination against women in these areas are intensified, contributing to violations of women’s rights to housing, land and property.⁵¹

51. See A/HRC/23/44, paras. 21–22. ↩

People living with HIV/AIDS in disaster and post-disaster areas are especially vulnerable, because a lack of food, and especially of basic nutriments, may result in a faster progression from HIV to AIDS.⁵² The energy requirements of people living with HIV are higher than for healthy non-infected persons in similar physical condition and of the same age and sex.⁵³

52. Fiona Samuels, Paul Harvey and Thobias Bergmann, “HIV and AIDS in emergency situations: synthesis report”, Overseas Development Institute (2008). ↩
53. United States Agency for International Development (USAID), “Nutrition and HIV/AIDS: evidence, gaps, and priority actions” (2004). ↩

Sub-Saharan Africa has a high HIV/AIDS rate and suffers from frequent natural disasters. Moreover, rates in HIV-endemic rural areas have increased “by 11 per cent for every recent drought”.⁵⁴

54. UNAIDS, “Building resilience to drought and disease: how UNAIDS is supporting Eastern and Southern Africa in the face of El Niño” (2016). ↩

As UNAIDS mentioned in a recent factsheet focusing on the Eastern and Southern African regions, “risk and vulnerability are often heightened by income shocks and food insecurity — particularly among women and girls — due to a range of factors such as migration in search of work, early marriage of girls and young women to older men to 47 See http://norlha.org/wp-content/uploads/2015/04/Impact_of_natural_disaster_on_ girls_and_women_Norlha_June_2015.pdf. 48 World Bank, FAO, International Fund for Agricultural Development, Gender in Agriculture Sourcebook (Washington, 2009), pp. 455–456. 49 See A/70/287. 50 Marshall Burke, Erick Gong and Kelly Jones, “Income shocks and HIV in Africa”, The Economic Journal, vol. 125, issue 585 (2015), pp. 1157–1189. 51 See A/HRC/23/44, paras. 21–22. 52 Fiona Samuels, Paul Harvey and Thobias Bergmann, “HIV and AIDS in emergency situations: synthesis report”, Overseas Development Institute (2008). 53 United States Agency for International Development (USAID), “Nutrition and HIV/AIDS: evidence, gaps, and priority actions” (2004). 54 UNAIDS, “Building resilience to drought and disease: how UNAIDS is supporting Eastern and Southern Africa in the face of El Niño” (2016). increase economic security, and transactional sex for food or money”.⁵⁵ This also engenders higher risks of disease transmission resulting from last-resort coping strategies in some regions.

55. Ibid. ↩

Natural disasters may also contribute to a rising rate of gender-based violence, including of sexual violence,⁵⁶ and may increase diseases. Such risks are exacerbated if condoms are unavailable or scarce.⁵⁷ Also, mother-to-child transmission, including through breastfeeding, increases under the impact of natural disasters.

56. Fiona Samuels, Paul Harvey and Thobias Bergmann, “HIV and AIDS in emergency situations: synthesis report”, p. vii. ↩
57. Ibid., p. 11. ↩

Natural disasters create large-scale human suffering, and responding properly to disaster situations is challenging. Besides human rights law, other branches of laws, such as disaster response law, humanitarian law, environmental law, climate change law, refugee law, trade law, development law and economic law, as well as non-binding texts and General Assembly resolutions developed by governmental and non-governmental humanitarian actors, contain norms that are of relevance for natural and human-made disasters. Nonetheless, no comprehensive, holistic, multilateral disaster response treaty of general application currently exists.

Although the legal landscape is fragmented and uncertain, there have recently been positive moves toward implementing a human rights approach in disaster situations, including in regard to food aid and assistance. A human rights-based approach has crucial advantages in disaster settings, such as avoiding discrimination, prioritizing vulnerable communities, and providing measurable and enforceable obligations through accountability mechanisms. Yet, accountability remains challenging at the national and international levels due to the complexity of the humanitarian system.

There is a tendency to exaggerate the distinction between natural disasters and human-made disasters. Most natural disasters cannot be simply defined as “natural”, which would effectively release direct and indirect perpetrators from the burdens of responsibility: most of the time the two are linked. Interaction between nature and human activity needs to be better understood conceptually and with respect to policy goals, and on this matter a preventive approach is appropriate in respect of both. Considering that most of the time natural disasters take a heavier toll on poor and underprivileged people, it is important to define what “disaster” means legally and who will be responsible for the consequences of the disaster.

The Human Rights Council Advisory Committee, in a recent study, has referred to “emergencies” as situations where, in the context of natural disasters or conflicts, “local families and communities cannot cope with or recover from (the disaster) on their own”.⁵⁸ The International Law Commission defines disasters as “a calamitous event or series of events resulting in widespread loss of life, great human suffering and distress, mass displacement, or large-scale material or environmental damage, thereby seriously disrupting the functioning of society”.⁵⁹

58. See A/HRC/28/76. ↩
59. See A/71/10, para. 48. ↩

From the perspective of food security, “disaster” means that besides directly affecting a large part of the population and impairing the availability of and access to nutritious, culturally acceptable and safe food, the consequences of such events, as indicated earlier, may include the weakening of governance structures, destabilization of 55 Ibid. 56 Fiona Samuels, Paul Harvey and Thobias Bergmann, “HIV and AIDS in emergency situations: synthesis report”, p. vii. 57 Ibid., p. 11. 58 See A/HRC/28/76. 59 See A/71/10, para. 48. the food market and the destruction of livelihoods, thus making food-insecure populations even more susceptible to suffering future crises.⁶⁰ The occurrence of a disaster usually leads to an emergency response that is ill-suited to addressing root causes or long-term consequences. In fact, emergency responses are part of what may be referred to as the “disaster cycle”.⁶¹

60. FAO, “The right to adequate food in emergency programmes” (Rome, 2014), p. 3. ↩
61. Daniel A. Farber, “International law and the disaster cycle”, The International Law of Disaster Relief, (Cambridge University Press, 2014), p. 9. ↩

Due to the absence of binding legal mechanisms, discrepancies among various interpretations and the increased number of disaster situations worldwide, the International Law Commission has produced 21 draft articles on subjects ranging from the role of the affected State in coordinating an international disaster response to the recognition of human rights in the context of a natural disaster. The Commission’s 2016 draft articles on the protection of persons in the event of disasters explicitly adopt a rights-based approach, including the affirmation of human dignity, to address vulnerability in emergencies.⁶² The Commission’s Special Rapporteur on the topic commented on the debate within the humanitarian community, noting that the “rights-based” and more traditional “needs-based” approaches were not necessarily mutually exclusive, but complementary.⁶³ Moreover, while he recognizes the primary responsibility of the disaster-affected State, he takes a fresh approach by suggesting that human rights responsibilities might be on the verge of being “deterritorialized” by declaring and establishing an international duty of cooperation.⁶⁴ The draft articles clearly remind the international community of the responsibilities of external actors towards disaster-affected people. At the same time, the draft articles primarily cover the rights and obligations of States, as opposed to non-State actors,⁶⁵ while they invoke the phrase “international community” to describe the assemblage of relevant actors: third States, intergovernmental organizations and non-governmental organizations (NGOs) that are empowered to offer humanitarian assistance.⁶⁶

62. See A/71/10, para. 48. ↩
63. Commentary on art. 2. ↩
64. Therese O’Donnell and Craig Allan, “Identifying solidarity: the ILC project on the protection of persons in disasters and human rights”, George Washington International Law Review, vol. 49, No. 1, pp. 53–95 (2016). ↩
65. Dug Cubie and Marlies Hesselman, “Accountability for the human rights implications of natural disasters: a proposal for systemic international oversight”, Netherlands Quarterly of Human Rights, vol. 33/1 (2015), p. 18. ↩
66. See A/71/10, p. 70. ↩

Unlike the International Law Commission’s draft articles, the dominant view for international community disaster relief is still based on voluntarism and assumes that disaster-affected people remain dependent on the vagaries of altruism, which is often unreliable, politically partisan, and arbitrary.⁶⁷

67. Therese O’Donnell and Craig Allan, “Identifying solidarity: the ILC project on the protection of persons in disasters and human rights”. ↩

It is notable that the Human Rights Council Advisory Committee report (A/HRC/28/76) does not refer to the work of the International Law Commission on the protection of persons in the event of disasters, nor to the work on the international legal obligations of States and non-State actors undertaken by the Commission’s Special Rapporteur. For a truly coordinated approach within the United Nations regarding human rights norms, it is essential to achieve cross-fertilization of concepts, research and activities.⁶⁸

68. Dug Cubie and Marlies Hesselman, “Accountability for the human rights implications of natural disasters: a proposal for systemic international oversight”, p. 24. ↩

Various United Nations Charter-based and treaty-based mechanisms, as well as institutional arrangements and procedures such as the International Law Commission, the Human Rights Council and its universal periodic review process, the thematic mandates 60 FAO, “The right to adequate food in emergency programmes” (Rome, 2014), p. 3. 61 Daniel A. Farber, “International law and the disaster cycle”, The International Law of Disaster Relief, (Cambridge University Press, 2014), p. 9. 62 See A/71/10, para. 48. 63 Commentary on art. 2. 64 Therese O’Donnell and Craig Allan, “Identifying solidarity: the ILC project on the protection of persons in disasters and human rights”, George Washington International Law Review, vol. 49, No. 1, pp. 53–95 (2016). 65 Dug Cubie and Marlies Hesselman, “Accountability for the human rights implications of natural disasters: a proposal for systemic international oversight”, Netherlands Quarterly of Human Rights, vol. 33/1 (2015), p. 18. 66 See A/71/10, p. 70. 67 Therese O’Donnell and Craig Allan, “Identifying solidarity: the ILC project on the protection of persons in disasters and human rights”. 68 Dug Cubie and Marlies Hesselman, “Accountability for the human rights implications of natural disasters: a proposal for systemic international oversight”, p. 24. and the treaty-body monitoring committees, address the linkages between human rights and disasters, although not in a coordinated or consistent manner. General human rights provisions can apply to disaster-affected populations, but they are not focused upon the typical difficulties arising from disasters.⁶⁹ Instead, each and every human rights violation, such as access to food, clean water, health and shelter, is considered separately, without taking the broader context into account, including communal stress.

69. Therese O’Donnell and Craig Allan, “Identifying solidarity: the ILC project on the protection of persons in disasters and human rights. ↩

The United Nations human rights system did not address natural disasters in a systematic manner until 2013. Human Rights Council resolution 22/16, calling for research on best practices and challenges in the promotion and protection of human rights in post-disaster and post-conflict situations, is the first formal act of recognition relating to the human rights implications of natural and human-made disasters. However, pre-disaster preparedness is not addressed in the text.

The same year, General Assembly resolution 67/87 focused on the accountability of humanitarian actors. Considering that numerous human rights violations can occur as a result of humanitarian operations — including unequal access to assistance, discrimination in aid provisions, enforced relocation, sexual and gender-based violence, loss of documentation, recruitment of children into fighting forces, unsafe or involuntary return or resettlement, and issues of property restitution — the accountability of humanitarian actors is vital.⁷⁰ The invocation of the Convention on the Privileges and Immunities of the United Nations by the Secretary-General to avoid potential compensation claims against the United Nations for the introduction of cholera by United Nations peacekeepers following the Haiti earthquake illustrates the difficulty of establishing accountability mechanisms applicable to humanitarian actors.⁷¹

70. Inter-Agency Standing Committee, Operational Guidelines on Human Rights and Natural Disasters (June 2006), p. 8. ↩
71. Dug Cubie and Marlies Hesselman, “Accountability for the human rights implications of natural disasters: a proposal for systemic international oversight”, p. 23. ↩

As the Committee on Economic, Social and Cultural Rights has pointed out, “States parties have a joint and individual responsibility, in accordance with the Charter of the United Nations … to cooperate in providing disaster relief and humanitarian assistance in times of emergency, including assistance to refugees and internally displaced persons. Each State should contribute to this task to the maximum of its capacities.”⁷² It is important to note that the recognition of the indivisibility of the rights in regard to disaster is part of the emerging jurisprudence on State responsibility.⁷³ In times of emergency, unlike with civil and political rights, there is no derogation clause to suspend State obligations pertaining to the right to food, as well as other economic, social and cultural rights.⁷⁴

72. See Committee on Economic, Social and Cultural Rights, general comment No. 14 (2000) on the right to the highest attainable standard of health, paras. 40 and 65, and general comment No. 12 (1999) on the right to adequate food, para. 38. ↩
73. Cubie and Hesselman, “Accountability for the human rights implications of natural disasters: a proposal for systemic international oversight”, p. 16. ↩
74. See Committee on Economic, Social and Cultural Rights, general comment No. 12, para. 6; and A/72/188, paras. 48–50. ↩

The right to food in emergencies needs positive action by States not only to respect and protect, but also to fulfil the normative content of international human rights principles. The obligation to fulfil requires States to take affirmative steps to facilitate the capacity of its people to feed themselves, identifying, in particular, its most vulnerable populations to ensure their access to food, and supplying food directly when individuals or groups are unable, for reasons beyond their control (e.g. natural disasters and armed conflict), to secure adequate food through their own means and resources. Article 11 of the Covenant does not make any differentiation about the causes of difficult times in relation to State obligation.⁷⁵

75. See A/72/188, paras. 47–61. ↩

The Committee on Economic, Social and Cultural Rights, in its general comment No. 19 (2007) on the right to social security, also deals with the human rights implications of financial preparedness for disasters, stating that States parties should consider establishing insurance schemes, such as crop or natural disaster insurance, which are accessible by the victims of a disaster.⁷⁶ Although the Committee recognizes that various human rights in the International Covenant on Economic, Social and Cultural Rights need particular action by States in the context of disasters, and has started to clarify obligations in this regard, it has not yet provided specific guidance on the human rights implications of natural disasters in the form of a dedicated general comment, which would be a helpful further step.⁷⁷

76. See paras. 28–50. ↩
77. Dug Cubie and Marlies Hesselman, “Accountability for the human rights implications of natural disasters: a proposal for systemic international oversight”, p. 27. ↩

When a State, which bears the primary duty, is unable or unwilling to provide humanitarian assistance to its suffering population, then other States and NGOs have a subsidiary responsibility to act. These multidimensional challenges have to be taken care of through disaster relief and humanitarian assistance.⁷⁸

78. Committee on Economic, Social and Cultural Rights, general comment No. 12, para. 38. ↩

Even though external humanitarian assistance should be provided upon request of the States affected by natural disasters, or at least with their consent, States’ arbitrary refusal to receive humanitarian assistance should be treated as a violation of international human rights law. Indeed, general comment No. 12 of the Committee on Economic, Social and Cultural Rights includes, among the violations of the right to adequate food, “the prevention of access to humanitarian food aid in internal conflicts or other emergency situations”.⁷⁹ Moreover, where the denial would threaten the lives of the affected population, the State would be in violation of the right to life. In fact, in 2008, when Cyclone Nargis struck Myanmar, the military regime initially rejected all offers of international humanitarian assistance. This reignited a debate over the apparent conflict between the right of a sovereign State to refuse assistance and the right of people to receive humanitarian relief in the context of natural disasters. Some controversially contended that Myanmar’s neglecting or refusing to accept humanitarian assistance could amount to a crime against humanity.⁸⁰

79. Ibid., para. 19. ↩
80. Matias Thomsen, “The obligation not to arbitrarily refuse international disaster relief: a question of sovereignty”, Melbourne Journal of International Law, vol. 16 (2015), p. 3. ↩

Treaty bodies also deal with disaster situations, in relation to specific areas of protection. The Committee on the Elimination of Discrimination against Women has raised concerns to the Government of Indonesia on issues relating to rural women’s protection and access to assistance, in response to tsunamis and earthquakes. Furthermore, the Committee has expressed concern about the impact of tsunamis and earthquakes in Chile, urging that reconstruction plans take a gender perspective into proper account.⁸¹

81. Cited in Dug Cubie and Marlies Hesselman, “Accountability for the human rights implications of natural disasters: a proposal for systemic international oversight”, p. 28. ↩

Similarly, the Committee on the Elimination of Racial Discrimination, which monitors the International Convention on the Elimination of All Forms of Racial Discrimination, expressed concern regarding Hurricane Katrina, in the United States of America, critically noting the slow and inadequate protection of the right to housing after the hurricane, especially for low-income African Americans.⁸²

82. Ibid. ↩

The Committee on the Rights of the Child has recommended that effective protection of children include: (a) the implementation of disaster preparedness in school curricula; (b) the development and implementation of action plans or strategies on assistance and protection; and (c) the setting up of “strategic budgetary lines” protecting 76 See paras. 28–50. 77 Dug Cubie and Marlies Hesselman, “Accountability for the human rights implications of natural disasters: a proposal for systemic international oversight”, p. 27. 78 Committee on Economic, Social and Cultural Rights, general comment No. 12, para. 38. 79 Ibid., para. 19. 80 Matias Thomsen, “The obligation not to arbitrarily refuse international disaster relief: a question of sovereignty”, Melbourne Journal of International Law, vol. 16 (2015), p. 3. 81 Cited in Dug Cubie and Marlies Hesselman, “Accountability for the human rights implications of natural disasters: a proposal for systemic international oversight”, p. 28. 82 Ibid. vulnerable and disadvantaged children “even in situations of economic crisis, natural disasters or other emergencies”.⁸³

83. Ibid., p. 29. ↩

Finally, the Committee on the Rights of Persons with Disabilities has created informal working groups to monitor the protection of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies and natural disasters.⁸⁴

84. Ibid. ↩

Food assistance is one of the oldest forms of international support and it has saved many lives during severe humanitarian crises. It is a remedy for emergency situations, to provide food for those who are caught in the midst of a disaster situation.

At the same time, poorly designed, charity-based food aid can do more harm than good, can have negative effects on small-scale farmers in recipient countries by exerting downward pressure on domestic food prices, and can adversely affect trade, production incentives and labour markets. In some cases, food aid practices might even violate the right to food, if the food aid were distributed unfairly or if the most vulnerable were not prioritized. Food aid should serve the best interests of recipient country’s food and agricultural policy, provide long-term livelihoods for people and uphold environmental best practices. The very simplistic “if people are hungry, we should simply give them food” argument, which is frequently heard, is an example of inappropriate use of food aid.⁸⁵ Volunteerism with respect to food assistance is also humiliating to the recipients, and by definition inconsistent and frequently manipulated for political gain.

85. Christopher B. Barrett and Daniel G. Maxwell, Food Aid After Fifty Years: Recasting its Role (New York, Routledge, 2005). ↩

In the 1950s, food aid was dominated by the United States, Canada and Australia, which together accounted for over 90 per cent of the total. During the cold war, international commitments to food aid were only partly about humanitarianism, being often driven by high-priority geopolitical and economic interests. The food aid programmes of that era largely provided grain in the form of bulk commodities — often agricultural surpluses that were accumulating in donor countries.⁸⁶

86. Jennifer Clapp, Hunger in the Balance: The New Politics of International Food Aid (Cornell University Press, 2012). ↩

In the 1970s, the European Community and Japan also began to provide international food aid. Since then, the European Union has become the second-largest food aid donor. One third of the European Union’s annual humanitarian aid budget is used to provide emergency food assistance. The European Union has a flexible policy that it adapts to specific cases by providing cash-based as well as in-kind assistance.

Although official development assistance (ODA), emergency humanitarian aid, food aid and food assistance have different targets, priorities and funding, and are run by different organizational structures, all three programmes have significant impacts on the local economy, on the local agricultural structure, and on people’s right to food, both individually and as a community. Most of the time, long-term recipients of ODA and food aid/assistance become dependent in ways that impede balanced, sustainable development.

Over the last 50 years, the character of food aid policies and practices has changed, in parallel to global structural changes in agriculture and changing geopolitical conditions. Firstly, the absolute value and relative importance of food aid has declined dramatically. In the 1960s, food aid represented approximately 20 per cent of all ODA, but by the early 2000s that figure had fallen to about 5 per cent.⁸⁷

87. Jennifer Clapp, “Food aid”, Handbook of Globalisation and Development (2017), p. 394. ↩

Secondly, in the aftermath of the cold war, donors began to direct their food aid or assistance towards the poorest countries, rather than prioritizing geopolitical considerations. More frequent, more severe and longer-lasting human-made and natural disasters worldwide have refocused food aid on the challenge of feeding emergency victims. By the early 2000s, over 60 per cent of food aid was in response to emergency situations.⁸⁸ In recent years, 80 per cent of disasters have been climate change-related extreme weather events, which have severely hit places that already have food insecurity, such as countries in South Asia, sub-Saharan Africa, the Middle East and Central America. Yet, those countries’ contribution to global warming is close to zero. Therefore, disaster relief systems and humanitarian aid almost go hand in hand with climate change policies, and should be factored into adaptation and mitigation remedies.⁸⁹

88. Ibid. ↩
89. See A/70/287. ↩

Thirdly, donor countries have gradually moved from direct transfer of commodity surpluses to sourcing food aid on open markets. The United States, as the biggest donor, provides roughly 50 per cent of all food aid worldwide, reaching approximately 50 million people in 56 countries at an average annual cost of US$2 to 3 billion. But in real terms, the food aid budget of the United States is less than a third of what it was in 1965. The United States spends more than half of its international food aid budget transporting life-saving commodities through a complex system that is responsive to special interests and hampered by bureaucratic obstructions.⁹⁰ As Oxfam has documented, such a process is outdated and inefficient from the perspective of getting food to people in need.⁹¹ During sudden emergencies such as the earthquake in Haiti and the hurricane in Puerto Rico, delays cost lives. In recent years, several reform efforts have been taking place to correct such situations.

90. For instance, in the case of Africa, 70% of the budget goes on transportation. See Medill and USA Today, “Hunger pains: U.S. food program struggles to move forward”. ↩
91. See www.oxfamamerica.org/take-action/campaign/food-farming-and-hunger/food-aid/. ↩

As part of the larger humanitarian structure, food assistance intrinsically suffers from more general shortcomings that plague the humanitarian system. Rather than being carefully coordinated and deliberately engineered, the humanitarian structure evolved from fragmentary endeavours and is composed of a multitude of autonomous entities with separate governance and accountability structures — including NGOs,⁹² United Nations humanitarian agencies, the International Red Cross and Red Crescent Movement, recipient and donor government agencies, humanitarian arms of regional intergovernmental organizations, military forces, religious institutions and private sector entities.⁹³ This disparate system, which lacks leadership and coordination, is susceptible to inefficiencies, poor communication, bureaucratic restrictions, corruption, and costly duplicative administrative systems that prevent rapid, flexible and effective responses to changing needs.⁹⁴

92. Some financially powerful NGOs are World Vision, CARE and Catholic Relief Services. ↩
93. Active Learning Network for Accountability and Performance in Humanitarian Action (ALNAP),The State of the Humanitarian System, 2015 edition, p. 19. ↩
94. ALNAP, The State of the Humanitarian System, 2015 edition. ↩

Funding shortages are an important concern as the number of disaster- and conflict-prone areas is increasing. Donor countries have promised to spend 0.7 per cent of their gross national income as aid. According to Organization for Economic Cooperation and Development records, many rich countries have failed to reach their agreed obligations; only a few have met their commitments.⁹⁵

95. See www.oecd.org/dac/financing-sustainable-development/development-aid-rises-again-in-2016-but-flows-to-poorest-countries-dip.htm. ↩

Food from supply-driven rather than demand-driven food aid programmes frequently goes to people who do not want to eat it, do not know how to cook it or have no real use for it.⁹⁶, 97 Furthermore, the quality of the food has been often contentious, with 88 Ibid. 89 See A/70/287. 90 For instance, in the case of Africa, 70% of the budget goes on transportation. See Medill and USA Today, “Hunger pains: U.S. food program struggles to move forward”. 91 See www.oxfamamerica.org/take-action/campaign/food-farming-and-hunger/food-aid/. 92 Some financially powerful NGOs are World Vision, CARE and Catholic Relief Services. 93 Active Learning Network for Accountability and Performance in Humanitarian Action (ALNAP), The State of the Humanitarian System, 2015 edition, p. 19. 94 ALNAP, The State of the Humanitarian System, 2015 edition. 95 See www.oecd.org/dac/financing-sustainable-development/development-aid-rises-again-in-2016-butflows-to-poorest-countries-dip.htm. 96 Rob Bailey, Chatham House, cited in “Hunger pains: U.S. food program struggles to move forward”. respect to genetically modified seeds, or the provision of fortified foods that have never been tested on large populations. Food Assistance Convention of 2012

96. Rob Bailey, Chatham House, cited in “Hunger pains: U.S. food program struggles to move forward”. ↩

The Food Assistance Convention, of 2012, is the only legally binding international treaty addressing “the food and nutritional needs of the most vulnerable populations” in emergency situations.⁹⁸ It has in fact has been in operation since 1967 and has been continuously reformulated over the years. In 1991, there was a fundamental shift in approach, expanding the traditional focus on tied in-kind food aid to a much broader form of assistance that included a stronger focus on the nutritional aspects of food aid, the protection of livelihoods, and the use of cash transfers and vouchers.

98. Ratified by Austria, Canada, Denmark, Finland, Japan, Switzerland and the United States, and by the European Union, in 2012. ↩

In 2012, there was a change in the convention’s title from “aid” to “assistance”, revealing a certain shift. Longer-term development assistance seems to be reflected through the 2012 Convention’s change in the emergency framework, which includes all forms of food assistance. This has the potential to prevent distortions of local markets and to generate benefits for local producers, thereby combining emergency responses with broader development goals of food security in recipient countries.

This change appears to have been shaped by previous international commitments, most notably the Paris Declaration on Aid Effectiveness, of 2005, which placed strong emphasis on recipient countries’ ownership of their development policies and strategies while at the same time recognizing the responsibility of donors to take account of food policies in recipient countries.⁹⁹

99. See the Paris Declaration on Aid Effectiveness, para. 14. ↩

The shift towards assistance, with greater possibilities for beneficiaries’ participation, and explicit recognition of the right to food, suggests that the Food Assistance Convention has the potential to contribute to developing a governance regime.¹⁰⁰ However, a number of areas of reform stand out. For instance, the extent to which beneficiaries have actually participated in practices and policies relating to food assistance remains unclear.¹⁰¹ Similarly, beneficiary States can now also become parties to the Convention, but while a number of non-State parties have attended sessions of the Food Assistance Committee as observers, no beneficiary countries have yet become parties to the Convention.

100. See the Food Assistance Convention (2012), art. 2 (c) (ii). ↩
101. See www.foodassistanceconvention.org/downloads/sumrec/fac2015nr.pdf, pp. 6–16. ↩

The 2012 Convention has an explicit reference to the right to food.¹⁰² It has been observed that there is increasing recognition generally among donor States of the usefulness of a human rights lens when addressing issues of food insecurity.¹⁰³ Acknowledging the right to food in the preamble is indeed a positive step, however the preamble emphasizes the role of beneficiary States and not of donor States.¹⁰⁴ The Convention also adds a new reference to upholding the dignity of the beneficiaries of assistance, indirectly invoking this fundamental underpinning human rights principle.¹⁰⁵

102. See the Food Assistance Convention, preamble. ↩
103. See www.tafad.org. ↩
104. Annamaria La Chimia, “Food security and the right to food: finding balance in the 2012 Food Assistance Convention”, International and Comparative Law Quarterly, vol. 65, No. 1 (2016), pp. 99–137. ↩
105. See the Food Assistance Convention, art. 2 (c) (iv). ↩

Similarly, several provisions of the Convention draw upon the text of the 2004 Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security, of 2004. Both the Voluntary Guidelines and the 97 Frederic Mousseau, “Food aid or food sovereignty? Ending world food hunger in our time” (The Oakland Institute, 2005). 98 Ratified by Austria, Canada, Denmark, Finland, Japan, Switzerland and the United States, and by the European Union, in 2012. 99 See the Paris Declaration on Aid Effectiveness, para. 14. 100 See the Food Assistance Convention (2012), art. 2 (c) (ii). 101 See www.foodassistanceconvention.org/downloads/sumrec/fac2015nr.pdf, pp. 6–16. 102 See the Food Assistance Convention, preamble. 103 See www.tafad.org. 104 Annamaria La Chimia, “Food security and the right to food: finding balance in the 2012 Food Assistance Convention”, International and Comparative Law Quarterly, vol. 65, No. 1 (2016), pp. 99–137. 105 See the Food Assistance Convention, art. 2 (c) (iv). 2012 Convention recognize the importance of targeting vulnerable groups for food assistance (art. 2 (c) (i) of the Convention), supporting the long-term food security objectives of beneficiary States (art. 2 (a) (ii) of the Convention), supporting the long-term rehabilitation and development objectives (art. 2 (a) (ii) of the Convention), avoiding dependency on food assistance (art. 2 (a) (iv) of the Convention) and preventing disruption of local food production (art. 2 (a) (v) of the Convention).

By translating elements of the Voluntary Guidelines into principles to guide parties’ interventions, the 2012 Convention is constructing the foundation of an increasingly rights-based perspective applicable to emergency assistance. The 2012 Convention can provide an example of how the “State duty to assist” can be fulfilled in a specific context.¹⁰⁶

106. Annamaria La Chimia, “Food security and the right to food: finding balance in the 2012 Food Assistance Convention”. ↩

Although the principles of assistance reflect a rights-based approach, it is difficult to measure their current impact on parties’ practices. An ad hoc example of compliance is seen in the Food Assistance Committee’s 2016 annual report, in which the European Union’s activities in West Africa following the Ebola crises focused on the communities most affected by the disease, in compliance with the principle of giving priority to vulnerable groups in line with article 2 (c) (i) of the 2012 Convention. However, recent research shows that with respect to food assistance to the Syrian Arab Republic between 2012 and 2015, the Convention was not mentioned at all.¹⁰⁷ In the 100 interviews conducted with representatives of humanitarian organizations engaged in food assistance in the region, interviewees did not regard the Convention as an important consideration.

107. José Ciro Martínez and Brent Eng, “The unintended consequences of emergency food aid: neutrality, sovereignty and politics in the Syrian civil war, 2012-2015”, International Affairs, vol. 92, No. 1 (2016), pp. 153–173. ↩

The Convention also does not contain an effective evaluation mechanism. Its article 2 (d), on principles of food assistance accountability, leaves evaluation to the parties, and the Convention does not refer to a systematic mechanism for monitoring and evaluating the outcomes and impact of assistance interventions (see art. 2 (d) (ii) of the Convention).

Considering the increased role of private entities, States should follow the Guiding Principles on Business and Human Rights (pillar I) with respect to interventions of private sector partners in emergency contexts. This is relevant to the role of States parties in developing legislation, monitoring and enforcing domestic obligations. Private companies should also align their interventions with the Guiding Principles (pillar II). Recent guidance is provided in Committee on Economic, Social and Cultural Rights general comment No. 24 (2017) on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities. The Committee on Economic, Social and Cultural Rights is well placed to request information from national governments as to their compliance with extraterritorial obligations.

In May 2016, the first World Humanitarian Summit was convened by the United Nations to develop a more global, accountable and robust humanitarian system, and for reform of the humanitarian aid industry. The World Humanitarian Summit has been groundbreaking, as it has encouraged more flexible funding, greater local ownership and greater accountability. Agreements were made to use less earmarking, to make greater use of cash transfers and to raise the ceiling of the Central Emergency Response Fund.

Despite clear evidence that preparedness, early warning, and monitoring systems save lives, targeted funding by the international community remains weak. Between 1991 and 2010, less than 0.5 per cent of ODA was spent on disaster risk reduction, and only a fraction of that was spent on preparedness.¹⁰⁸ Recognizing this shortcoming, the new Global Partnership for Preparedness was launched at the World Humanitarian Summit to provide predictable funding. However it has already met serious obstacles, with not a single State having pledged to provide long-term funding and donors continuing to be hesitant about making unearmarked contributions to such a common fund.¹⁰⁹

108. Jan Kellett and Alice Caravani, “Financing disaster risk reduction: a 20-year story of international aid” (Overseas Development Institute, 2013). ↩
109. Matthew Serventy and Petra Jaervinen, “Global Preparedness Partnership: update on progress since the World Humanitarian Summit”. ↩

While in many instances it is too early to assess how the wide-ranging set of commitments will be implemented and monitored, the first progress reports illustrate mixed results. Progress has been uneven, with most developments focusing on localization, cash programming and improved linkages with private sector networks, with less progress on participation and earmarking.¹¹⁰

110. Global Public Policy Institute, “Independent grand bargain report”, 8 June 2017. ↩

Considering the humanitarian sector’s structural deficiencies, critics argue that the limits of possible reform have been reached. They have, for example, condemned the Summit for failing to agree on meaningful structural reform of the United Nations system,¹¹¹ and some are calling for a radical rethinking of the entire humanitarian system to make it more anticipatory, adaptive, participative and accountable. The wide-ranging suggestions include a unified United Nations “super emergency agency”; the establishment of a centralized capacity at the international level to provide stronger leadership; or alternatively, a major devolution to local and regional levels to make operating modalities more responsive to realities on the ground.

111. See www.irinnews.org/analysis/2016/05/26/world-humanitarian-summit-winners-and-losers. ↩

Climate-related disasters are increasing in frequency and intensity. Their number has almost doubled in the past decade (there are now, on average, 335 events annually). Their impacts can be devastating for any State, even a wealthy one. In 2017, overall losses from storms and fires in the United States and widespread flooding in South Asia reached $330 billion.¹¹² Hurricane Harvey in Texas was the most expensive natural disaster in 2017, costing $85 billion. The impact on agriculture from devastating wildfires in California is yet to be calculated.

112. See www.nytimes.com/2018/01/04/climate/losses-natural-disasters-insurance.html. ↩

Territory with poor infrastructure, a deprived population, compromised building safety standards and an underresourced health system undoubtedly add to the human suffering resulting from severe natural disasters. In 2017, Hurricanes Irma and Maria caused significant damage in Cuba, Haiti and Puerto Rico. The drought in the Horn of Africa pushed more that 11 million people into severe food insecurity in Ethiopia, Kenya and Somalia. Flooding in Nepal and Bangladesh left 10 million people food-insecure.

Many of the negative effects of disasters may be prevented with appropriate planning and investment in infrastructure, or if the root causes are dealt with properly and take vulnerability variations into account. Most of the weather-related disasters that are “often dismissed as ‘climatic accidents’ turn out to be not so accidental at all”.¹¹³ Therefore, effective and meaningful policies and regulations require “a much more holistically minded approach which recognizes historical contingencies and wealth inequality”.¹¹⁴

113. Therese O’Donnell and Craig Allan, “Identifying solidarity: the ILC project on the protection of persons in disasters and human rights”. ↩
114. Ibid. ↩

Severe food insecurity can be averted or substantially reduced if the right investments in agriculture are made in post-disaster periods. This would require, both more typical humanitarian “emergency” responses as well as “development” and capacity-building activities. Even at the earliest stages of a response, when the 109 Matthew Serventy and Petra Jaervinen, “Global Preparedness Partnership: update on progress since the World Humanitarian Summit”. 110 Global Public Policy Institute, “Independent grand bargain report”, 8 June 2017. 111 See www.irinnews.org/analysis/2016/05/26/world-humanitarian-summit-winners-and-losers. 112 See www.nytimes.com/2018/01/04/climate/losses-natural-disasters-insurance.html. 113 Therese O’Donnell and Craig Allan, “Identifying solidarity: the ILC project on the protection of persons in disasters and human rights”. 114 Ibid. emphasis is on providing urgent life-saving food assistance, it is crucial to strengthen the resilience of the communities affected.

Food assistance, although having a vital role as part of the humanitarian system, suffers from serious financial constraints and lack of coordination. Solving chronic hunger in a situation of natural disasters combined with other calamities requires various forms of assistance — deploying a range of humanitarian, economic, political and even military tactics. This will only be possible if there are coordinated political and financial commitments by developed countries. The effects of such disasters can be overwhelming, with historically high numbers of victims in terms of migrants and refugees forced to leave their homes.

The root causes of food insecurity in the context of natural disasters and post-disaster settings needs to be understood and addressed together with other global problems. Climate change has long-term and deeper impacts on food insecurity that eventually could bring conflicts to countries that have limited capacity to cope, which could then become trapped in a vicious cycle of conflict, disaster and food insecurity. At the same time, while such countries have contributed only minimally to greenhouse gas emissions, most of the countries that donate to food assistance are significantly responsible for climate change. Therefore, increasing finance to support developing countries in tackling climate change impacts, through adaptation and by addressing loss and damage, is essential.

Recognizing the negative impacts that human rights violations have on the effectiveness of relief operations, humanitarian reform efforts are increasingly seeking to incorporate a rights-based approach in the programming, targeting and distribution of food assistance. Beyond the implicit ideas of the interdependence and indivisibility of human rights, the participation of affected populations in decision-making processes, cultural appropriateness, non-discrimination, the protection of vulnerable groups, and gender-based assessments will be helpful to improve fragmented systems and to reform disaster management governance.

It is important to consider the right to food as a collective right as well as an individual right, as disasters and emergency situations have an impact on society as a whole, as well as on distinct communities. This approach can be found in several United Nations instruments, such as the United Nations Declaration on the Rights of Indigenous Peoples, the Declaration on the rights of peasants and other people working in rural areas, article 11 of the International Covenant on Economic, Social and Cultural Rights, the Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security, the International Labour Organization (ILO) Indigenous and Tribal Peoples Convention, 1989 (No. 169), and agenda 21, chapter 26, from the 1992 United Nations Conference on Environment and Development (Rio Summit).

Interpreting the right to food in a humanitarian context as a collective right would give a holistic approach to improving food systems, provide additional legal protection to communities for their access to resources and assets, protect and strengthen traditional food systems and local knowledge, coincident with recovering from emergencies. In other words, emergencies offer an opportunity to introduce food sovereignty principles as part of the human right to food while dealing with disaster and post-disaster recovery efforts. It is essential that disasters should not be treated by donors as an opportunity to change traditional food and agricultural systems and impose industrial agriculture. On the contrary, while responding to the most urgent food needs, post-disaster contexts should be an occasion to support or introduce food sovereignty that primarily supports locals, smallholder farmers, fisherfolk, indigenous communities, and women.

With a view to achieving an integrated and systemic approach to the right to adequate food in disaster and post-disaster contexts, the Special Rapporteur recommends that States:
(a) Develop national laws and monitoring systems on disaster management (prevention, response and recovery) to incorporate a human rights-based approach;
(b) Adopt necessary legislative and budgetary measures to focus on prevention and disaster risk reduction measures, in order to avoid environmental degradation and consequences on ecosystems and biodiversity, which should include forest conservation activities and watershed management;
(c) Develop legislation and monitoring and enforcing mechanisms at the national level following the Guiding Principles on Business and Human Rights with respect to the participation of the private sector in emergency contexts;
(d) Regulate and monitor agricultural investments in disaster settings, privileging local ownership and food sovereignty and not interfering with the local market;
(e) Consider establishing “crop and natural disaster insurance” that is accessible for victims after a disaster, and adopting measures for the protection of seeds;
(f) Prioritize the needs of the most vulnerable, especially children, and those most at risk, by setting up budgetary priorities that apply even in situations of economic crisis or natural disaster or other emergencies;
(g) Set policies that pay particular attention to the role of women in disaster and post-disaster situations, acknowledging their transformative role and leadership capacity.

Further, the international community should:
(a) Enhance coordination between existing humanitarian institutions, and between United Nations bodies that each have specific mandates but none of which exclusively deals with disaster settings, in order to regulate the entire system;
(b) Consider the negotiation of a comprehensive, multilateral treaty to respond to disaster situations in a coordinated and effective manner. The treaty should:
Remind States that they bear a responsibility to protect people and the environment in times of severe emergency and large-scale natural disaster, rather than relying on voluntarism;
Acknowledge that such obligations should be aligned with human rights principles sensitive to justice, human dignity and equality;
Establish a centralized institution at the international level to provide stronger leadership with respect to the humanitarian agenda;
Provide innovative funding mechanisms to close the financial gap;
Establish accountability mechanisms for all humanitarian actors, including NGOs and private sector actors.

The Committee on Economic, Social and Cultural Rights should prepare a general comment focused on human rights remedies in times of disaster and in post-disaster situations, as well as on preventive measures to clarify the obligations of States and international communities.