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2.1. The normative content of the right to adequate food

The right to adequate food is a fundamental human right recognized by international law in several dimensions:

In its General Comment 12, the CESCR clarified that “the right to adequate food is realized when every man, woman and child, alone or in community with others, has physical and economic access at all times to adequate food or means for its procurement” (para. 6). According to the General Comment, the realization of the right to adequate food requires:

A distinction must be made between the right to adequate food and the right to be free from hunger. The right to be free from hunger ensures a minimum daily nutritional intake and the bare survival of the person. The right to adequate food goes beyond freedom from hunger to include also an “adequacy” standard (in terms of quality, quantity and cultural acceptability).

2.2. Obligations for States and non-State entities

2.2.1. Primary responsibility of affected States and role of international cooperation

States are the duty-bearers under international human rights law and, together with other armed groups, are bound by the norms of international humanitarian law. Each State has primary responsibility to take care of the victims of natural or man-made emergencies occurring in its territory (cf. UNGA Resolutions 43/131, second preambular paragraph; 45/100, third preambular paragraph; and 46/182, paragraph 4 of Annex I). Several norms of international law, particularly international humanitarian law, create obligations also for non-State entities (see section 2.2.7 below).

International cooperation also has a role in supplementing the efforts of States directly affected by natural or man-made disasters. Article 2(1) of the ICESCR spells out the obligation of States “to take steps, individually and through international assistance and cooperation, [...] with a view to achieving progressively the full realization of the rights recognized in the [...] Covenant” (emphasis added). A similar norm is contained in article 11(2) of the Covenant with specific regard to the right to freedom from hunger, to the effect that States shall take measures, individually and through international cooperation (emphasis added). The notion of international cooperation, however, may be qualified by the wording of paragraph 1 of article 11, which provides that State parties will take appropriate steps to ensure the realization of the right to an adequate standard of living, “recognizing to this effect the essential importance of international cooperation based on free consent” (emphasis added). The existence of a legally binding obligation to provide international food aid is not widely recognized by States, although some donor countries consider it a moral duty to do so. In particular, States are likely to resist the notion that they had a specific obligation that could be enforced in specific instances by the country requesting food aid. However, the supplementary role of the international community in general is well established and was also emphasised by the UN General Assembly in its Resolution 46/182 (paras. 4 and 5).

Under international law, States have both “progressive” and immediate obligations to realize the right to adequate food. State obligations may be classified in three categories: the obligation to respect, the obligation to protect and the obligation to fulfil. In turn, the obligation to fulfil includes an obligation to facilitate and an obligation to provide. This classification has been endorsed by the CESCR in its General Comment 12, as well as by a great number of scholars. It may provide a useful analytical framework to consider obligations under all relevant branches of international law, and will therefore be followed in this analysis.

2.2.2. Progressive realization and immediate obligations

The fundamental obligation of States under the ICESCR is to “take steps [...] with a view to achieving progressively the full realization of the rights” (article 2(1), emphasis added). This concept was clarified by the CESCR in its General Comment 3: “the concept of progressive realization constitutes recognition of the fact that full realization of all economic, social and cultural rights will generally not be able to be achieved in a short period of time. [...] Nevertheless, the fact that realization over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content. [... The Covenant ...] imposes an obligation to move as expeditiously and effectively as possible towards that goal. Moreover, any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources” (para. 9).

Furthermore, some State obligations under the Covenant are of immediate effect, namely:

In addition, a State violates its obligations under the Covenant if it “fails to ensure the satisfaction of, at the very least, minimum essential level required to be free from hunger”, provided that this failure is due to unwillingness on the part of the State (rather than to inability linked to lack of resources) (General Comment 12, para. 17; cf. also General Comment 3, para. 10).

2.2.3. Obligation to respect

The obligation to respect requires States not to take any measures that would result in preventing individuals from having access to adequate food. Indeed, the right to adequate food is primarily to be realized by right holders themselves through their economic and other activities. States have a duty not to unduly hinder the exercise of those (lawful) activities. This obligation to respect stemming from human rights law is applicable in both natural and man-made disasters. In armed conflicts, it is underpinned by international humanitarian law provisions prohibiting the use of starvation of civilians as a method of warfare. Furthermore, the intentional deprivation of food constitutes in certain circumstances a crime punishable under international criminal law (genocide, crime against humanity or war crime). Some issues of particular interest relating to the obligation to respect are examined more in detail below.

Deliberate starvation of civilians

In international armed conflicts, “starvation of civilians as a method of warfare is prohibited” (Additional Protocol I, art. 54(1)). A party to the conflict cannot “attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away or for any other motive” (Additional Protocol I, art. 54(2)). Objects indispensable to the survival of the civilian population “shall not be made the object of reprisals” (Additional Protocol I, art. 54(4)).

As for non-international armed conflicts, article 14 of Additional Protocol II prohibits starvation of civilians as a method of combat using a wording similar to that of article 54 of Additional Protocol I. Additional Protocol II is binding both for States and armed groups.

It is worth noting that the violation of the prohibition to use starvation as a method of warfare does not require starving a population to death; a violation occurs whenever a party to a conflict is deliberately “causing the population to suffer hunger, particularly by depriving it of its sources of food or of supplies”[18].

The attacking, destroying, removing or rendering useless of objects indispensable to the survival is prohibited only in so far as it is carried out “for the specific purpose”, i.e. with the intention, of depriving the civilian population of its access to food or means for its production. This intention may be difficult to prove. However, it may be inferred not only from the attacker’s explicit statement, but also from the factual circumstances of the attack (e.g. efforts on the part of the attacker to distinguish between civilian and military targets, permission on the part of the attacker for relief convoys to reach the affected population, etc.). By requiring this “specific purpose”, the Protocols allow blockades, i.e. measures aimed at “depriving the adversary of supplies needed to conduct hostilities and not to starve civilians”[19].

The use of starvation of civilians as a method of warfare in international armed conflicts, “including wilfully impeding relief supplies as provided for under the Geneva Conventions”, and “wilfully causing great suffering [...] not justified by military necessity and carried out unlawfully and wantonly” constitute war crimes and grave breaches of international humanitarian law (respectively, the ICC Statute, art. 8(2)(b)(xxv), and the Fourth Geneva Convention, art. 147).

Deliberate starvation, whether in war or peace, may also constitute genocide or a crime against humanity, under international criminal law. Genocide is defined as “deliberately inflicting on [a national, ethnical, racial or religious] group conditions of life calculated to bring about its physical destruction in whole or in part” (Genocide Convention, art. 2, and the ICC Statute, art. 6(c)); this may also take the form of the denial of access to food for a group affected by a natural or other disaster[20]. Crimes against humanity are defined as widespread or systematic attacks against the civilian population carried out with knowledge of the attack; the crime against humanity of extermination “includes the intentional infliction of conditions of life, inter alia, the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population” (ICC Statute, arts. 7(1)(b) and 7(2)(b)). It should be noted that a “widespread or systematic attack” may be committed either in peacetime or in war.

In emergency situations where international humanitarian law is not applicable (e.g. natural disasters), or where the acts do not constitute genocide or crimes against humanity, deliberate starvation of civilians is still prohibited under international human rights law. This stems from several treaty provisions, particularly those concerning the right to adequate food and the right to life. Moreover, it may be argued that it was never intended that the protection granted by States to their own people (under international human rights law) should be less than that granted to the population of enemy States (under international humanitarian law).

Prevention of access to food aid

Another aspect of the obligation to respect relates to access to humanitarian assistance, including food and food-related aid. International humanitarian law imposes upon parties to an armed conflict the obligations not to hinder the passage of humanitarian consignments for affected populations, and to protect humanitarian supplies, equipment and personnel. These obligations are analysed more in detail below (section 2.3).

Obligation to respect and specific circumstances regulated by international humanitarian law

International humanitarian law also contains provisions ensuring that specified categories of persons are not deprived of their access to food. As for prisoners of war, for instance, the Third Geneva Convention requires that effects and articles used for feeding remain in the possession of prisoners of war (art. 18) and that prisoners of war be allowed to receive individual parcels or collective shipments containing inter alia foodstuffs (art. 72). During occupation, the Fourth Geneva Convention limits requisitions of foodstuffs available in the occupied territory by the occupying power (art. 55), and states that, subject to strict exceptions, protected persons in occupied territories must be permitted to receive individual relief consignments sent to them (art. 62). In places of internment, the reduction of food rations as a disciplinary measure is prohibited, and internees must be allowed to receive individual parcels or collective shipments containing foodstuffs (Fourth Geneva Convention, arts. 100 and 108).

Obligation to respect and landmines

As mined land cannot be used to produce food, landmines are, among other things, a major obstacle to agricultural production and food security. Moreover, landmines may impede the delivery of international assistance, including food aid. In this sense, the use of landmines may entail a violation of the obligation to respect.

The use, stockpiling, production and transfer of antipersonnel mines are prohibited by the 1997 Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Antipersonnel Mines and on Their Destruction (art. 1(1)). In addition, the deployment of landmines in “agricultural areas for the production of foodstuffs”, in “drinking water installations” and in “irrigation works”, with the “specific purpose of denying them for their sustenance value to the civilian population”, constitutes a violation of the prohibition to destroy or render useless “objects indispensable to the survival of the civilian population” embodied in article 54 of Additional Protocol I and in article 14 of Additional Protocol II.

Obligation to respect and economic sanctions

The obligation to respect has also implications for State conduct affecting the right to adequate food of individuals located in the territory of other States, particularly in relation to the imposition of economic sanctions. This issue has been addressed by the CESCR in its General Comment 8[21], and is outside the scope of this study.

2.2.4. Obligation to protect

The obligation to protect requires measures by the State to ensure that third parties (individuals, armed groups, enterprises, etc.) do not deprive right-holders of their access to adequate food. Under the obligation to protect, the State could be held liable for violations of the right to adequate food committed by non-State actors. Indeed, several judgements and reports issued by international human rights bodies (although with regard to human rights other than the right to adequate food) held States responsible “because of the lack of due diligence to prevent the violation [committed by non-State actors] or to respond to it”[22]. With specific regard to the right to adequate food, the CESCR listed among the examples of violations the “failure to regulate activities of individuals or groups so as to prevent them from violating the right to food of others” (General Comment 12, paragraph 19). In conflict situations, for instance, the obligation to protect entails that the State must take appropriate steps to prevent armed groups and other non-State actors from looting foodstuffs and depriving civilians of access to food.

2.2.5. Obligation to facilitate

The obligation to facilitate requires States to adopt measures aimed at improving right-holders’ access to and utilisation of resources and means to ensure their livelihood. This is exemplified by article 11(2) of the ICESCR, which reads: “the States Parties to the present Covenant [...] shall take [...] the measures [...] which are needed [..] to improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilisation of natural resources [...]”.

The obligation to facilitate also applies in natural and man-made emergency situations, for instance with regard to the facilitation of transit of humanitarian consignments. In armed conflicts, international humanitarian law explicitly affirms that States have an obligation to grant free passage to humanitarian relief and to facilitate the work of the humanitarian agencies and the distribution of food aid (Fourth Geneva Convention, arts. 23 and 59(3); Additional Protocol I, art. 70(2); Additional Protocol II, art. 18).

The obligation to facilitate also applies to transit States, i.e. to States not directly affected by the natural or man-made disaster but in the territory of which international personnel and equipment need to transit article 5 of the Convention on the Safety of United Nations and Associated Personnel reads: “a transit State shall facilitate the unimpeded transit of United Nations and associated personnel and their equipment to and from the host State”. As for international armed conflicts, article 70(2) of Additional Protocol I states that (not only the States parties to the armed conflict, but) “each High Contracting Party shall allow and facilitate rapid and unimpeded passage of all relief consignments, equipment and personnel [...]”. Calls for transit facilitation are also contained in non-binding UN resolutions (paragraph 7 of UNGA Resolution 46/182, paragraph 6 of UNGA Resolution 43/131 and paragraph 7 of UNGA Resolution 45/100).

For facilitation measures that are not explicitly determined by international instruments, States have a wide margin of discretion as to which measures are the most appropriate. An example of possible facilitation activity in emergencies is the adoption of regulations permitting and promoting private trade in such a way that it can supply food to regions affected by food shortages, so as to complement inflows of food aid provided by the government or by international humanitarian agencies.

2.2.6. Obligation to provide

The obligation to provide entails that the State, as a last resort, must provide food “whenever an individual or group is unable, for reasons beyond their control, to enjoy the right to adequate food by the means at their disposal” (General Comment 12, para. 15). Emergency situations, because of their very nature, often entail a shift from the obligation to facilitate to the obligation to provide. The State may of course delegate the implementation of the obligation to provide to the local level, but it remains ultimately responsible for such provisions taking place.

In international conflicts involving the occupation of a territory, article 55 of the Fourth Geneva Convention states that “to the fullest extent of the means available to it, the Occupying Power has the duty of ensuring the food [...] of the population; it should, in particular, bring in the necessary foodstuffs [...] if the resources of the occupied territory are inadequate”. This obligation to provide is confirmed and strengthened by article 69 of Additional Protocol I. Specific obligations to provide are also embodied in international humanitarian law with regard to specified categories of persons (e.g. for prisoners of war, articles 20, 26, 28 and 46 of the Third Geneva Convention; for detainees, articles 87 and 89 of the Fourth Geneva Convention; etc.).

Under refugee law, States have to grant refugees the same treatment as their nationals with regard to public relief and assistance (article 23 of the 1951 Convention Relating to the Status of Refugees) and any rationing system (article 20 of the same Convention).

There is a great variety of ways to implement the obligation to provide: gratuitous relief or work-for-food programmes; provision of food or of cash (in the latter case, measures to fulfil/provide can be coupled by measures to fulfil/facilitate the access of private trade to the affected region); etc.

Domestic provision of food aid and WTO law

Irrespective of the existence of a natural or man-made disaster, the WTO Agreement on Agriculture lists expenditures or foregone revenue in relation to the provision of domestic food aid to the needy among “Green Box” measures, i.e. among the forms of domestic support exempted from reduction commitments under article 6.1 and Annex 2 of the Agreement. Under paragraph 4 of Annex 2, domestic food aid must be in the form either of direct food distribution to recipients or of provision of means allowing recipients to purchase food (either at market or at subsidised prices); food aid must be distributed according to “clearly-defined criteria related to nutritional objectives”; food purchases by the government in relation to domestic food aid must be made at market prices; and the administration and the financing of food aid instruments must be transparent.

Norms on international food aid

The obligation to provide also entails that if a state is unable to directly fulfil this obligation, it has a duty to request the assistance of the international community in order to do so. In the words of the CESCR, “a State claiming that it is unable to carry out its obligation for reasons beyond its control [...] has the burden of proving that [...] it has unsuccessfully sought to obtain international support to ensure the availability and accessibility of the necessary food” (General Comment 12, para. 17).

Some international legal instruments (though not linked to human rights law) provide the framework for the supply of specified amounts of food aid by the donor countries ratifying them. This is the case of the Food Aid Convention. States parties to the Convention “agree to provide food aid [...] or the cash equivalent thereof” in annual amounts specified in the Convention (art. III(a) and (e)). Under article III(e), the States having an obligation to provide food aid under the Convention are: Argentina, Australia, Canada, the European Community and its Member States, Japan, Norway, Switzerland and the United States. Food aid is to be provided to least-developed countries, low-income countries, lower middle-income countries, and other countries included in the WTO list of Net Food-Importing Developing Countries (art. VII(a)).

Food aid under the Food Aid Convention can be supplied in different forms: grants of food or of cash; sales of food for the non-transferable and non-convertible currency of the recipient country; and sales of food on concessional credit. However, all food aid to least-developed countries is to be made in the form of grants, and, in any case, the aid in the form of grants is to represent not less than 80% of food aid (article IX). The aid is to be channelled bilaterally or through international agencies (particularly the World Food Programme) or non-governmental organizations (art. XI (a) and (b)). “If a member is unable to provide the amount specified in paragraph (e) of article III in a particular year, it shall report the circumstances to the [Food Aid] Committee as soon as possible [...]. Unless the Committee decides otherwise, the unfulfilled amount shall be added to the member’s commitment for the following year” (art. VI (b)).

Relevant provisions are also included in the WTO Decision on Measures Concerning the Possible Negative Effects of the Reform Programme on Least-Developed and Net Food-Importing Developing Countries, annexed to the WTO Agreement. Under the Decision, WTO members “agree to establish appropriate mechanisms to ensure that the implementation of the results of the Uruguay Round on trade in agriculture does not adversely affect the availability of food aid at a level which is sufficient to continue to provide assistance in meeting the food needs of developing countries, especially least-developed and net food-importing developing countries”. To this end, WTO members must:

Finally, WTO rules also include norms limiting the discretion of food aid donors as to the form of food aid, particularly with regard to the use of food aid as a disguised means of agricultural export promotion. Under the Agreement on Agriculture, non-commercial transactions cannot be used to circumvent subsidy reduction commitments, and in particular:

2.2.7. Non-State entities

States are the duty-bearers under international human rights law. Therefore, the right to adequate food entails “immediate” and “progressive” obligations to respect, protect and fulfil for the States concerned. However, emergency situations, especially armed conflicts, are often characterised by the presence of non-State entities (armed groups, etc.). These entities are covered by a variety of international instruments. International humanitarian law applies to both States and non-State entities (cf. common article 3 and Additional Protocol II). The provisions of international criminal law are also applicable to non-State actors. International resolutions are increasingly addressed to all parties involved in armed conflicts, including the States directly involved, non-State entities, neighbouring States with some degree of involvement, etc. An example is Security Council Resolution 1296 of 2000, which consistently refers to “all parties concerned”, and in some cases explicitly refers to “non-State parties”.

This means that the obligations reviewed in the previous sections are applicable, to varying degrees, also to non-State actors. This is certainly the case, for instance, of the obligation to respect in relation to deliberate starvation of civilians and prevention of access to food aid, and of the obligation to facilitate in relation to transit of humanitarian consignments (see sections 2.2.3 and 2.2.5 above).

2.3. Obligations concerning humanitarian assistance

The previous section examined the general framework of the obligations concerning the right to adequate food in emergency situations. This section goes more in depth into a key issue concerning that right in the context of natural or man-made disasters: the issue of access to humanitarian assistance, particularly food and food-related aid.

2.3.1. The principle of State consent

One of the cornerstones of the UN Charter is the principle of State sovereignty (art. 2(1)). This entails that external humanitarian assistance is to be provided upon request by the States affected by natural or man-made disasters, or at least with their consent. This principle has been reaffirmed on numerous occasions (e.g. UNGA Resolution 46/182, para. 3, and the World Food Summit Plan of Action, para. 43). In situations of international and internal armed conflicts, the principle of State consent is also underpinned by the provisions of international humanitarian law, namely article 70 of Additional Protocol I (international armed conflicts) and article 18(1) of Additional Protocol II (internal armed conflicts).

2.3.2. Limits to refusing consent

On the other hand, several principles and norms of international law restrict the scope of States’ discretion in refusing consent.

Offers are not to be considered unfriendly acts

First, it is a well-established principle of international law that offers of humanitarian assistance by impartial humanitarian agencies are not to be regarded as unfriendly acts or interference in a State’s internal affairs. This principle, explicitly stated with regard to international armed conflicts in article 70 of Additional Protocol I, is widely considered as a norm of customary international law. This was recognized by the International Court of Justice in the case Nicaragua v. United States[24].

Refusals must be justified by valid reasons and consent may be presumed in exceptional cases

Second, article 70 of Additional Protocol I states that humanitarian and impartial relief action “shall be undertaken”. This wording limits the discretion of receiving States, which can refuse their agreement only “for valid reasons, not for arbitrary or capricious ones”[25]. Similarly, the wording used in article 18(2) of Additional Protocol II (“relief actions [...] shall be undertaken subject to the consent”, emphasis added) constitutes a strong limitation of the discretionary power of the State[26]. In the words of the Commentary on the Geneva Conventions and the Additional Protocols, “the fact that consent is required does not mean that the decision is left to the discretion of the parties. If the survival of the population is threatened and a humanitarian organization fulfilling the required conditions of impartiality and non-discrimination is able to remedy this situation, relief actions must take place. [...] The authorities [...] cannot refuse such relief without good grounds”[27].

Finally, “in exceptional cases when it is not possible to determine which are the authorities concerned, consent is to be presumed in view of the fact that assistance for the victims is of paramount importance and should not suffer any delay”[28].

Refusal could be a violation of human rights law

The obligation to take steps to realize the right to adequate food stemming from articles 2 and 11 of the ICESCR also entails that the State cannot arbitrarily withhold its consent when it is unable or unwilling to provide necessary humanitarian assistance. A State arbitrarily denying its consent to humanitarian assistance in such circumstances would violate its obligations under article 11 of the ICESCR, particularly the obligation to respect. Indeed, General Comment 12 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” (para. 19). Moreover, where the denial would threaten the lives of the affected population, the State would violate the right to life.

Refusal could amount to a war crime, genocide or a crime against humanity

Article 70 of Additional Protocol I has to be read in conjunction with article 54, prohibiting the use of starvation of civilians as a method of warfare; this rule could be violated by an unjustified refusal of the consent on the part of a State[29]. Similarly, article 18 of Additional Protocol II must be read in conjunction with article 14[30]. The intentional use of starvation of civilians as a method of warfare in international armed conflict constitutes a war crime under the ICC Statute (art. 8(2)(b)(xxv)). Deliberately inflicting on a national, ethnical, racial or religious group conditions of life calculated to bring about its physical destruction in whole or in part, including in the form of denial of access to food, could constitute genocide (Genocide Convention, art. 2; ICC Statute, art. 6). Moreover, the intentional deprivation of access to food could amount, under specific circumstances, to a crime against humanity (ICC Statute, art. 7(2)(b)).

Emerging right to humanitarian assistance

Receiving humanitarian assistance necessary for survival, entailing the obligation not to hinder the delivery of aid, is increasingly considered a right by the international community. While this is not stated in any legally binding treaty, and is therefore still to find a solid basis under international law, it is recognized or implied in numerous non-binding instruments. For instance, although with no reference to a “right” to humanitarian assistance, several UN resolutions call upon affected States to facilitate the work of humanitarian agencies, to grant them humanitarian access and not to divert food aid (e.g. Security Council Resolution 1296 of 2000, para. 8; General Assembly Resolution 46/182, para. 6, Resolution 43/131, para. 4, and Resolution 45/100, para. 4). Similarly, among internationally recognized codes of conduct (which are outside the scope of international law), principle 1 of the Code of Conduct for the International Red Cross and Red Crescent Movement and NGOs in Disaster Relief states that “the right to receive humanitarian assistance [...] is a fundamental humanitarian principle which should be enjoyed by all citizens of all countries”.

Moreover, albeit without any reference to a “right” to humanitarian assistance, Security Council resolutions adopted under Chapter VII of the UN Charter with regard to specific humanitarian crises have called for safe and unhindered access for humanitarian assistance to those in need (e.g. Resolution 1258 of 1999, on the Democratic Republic of Congo); since these resolutions do not contain general statements of principles but rather directives for the resolution of specific crises, they are more related to implementation and are dealt with more in detail below (section 2.4.4).

All these binding and non-binding instruments reveal the increasing acceptance within the international community of a right to receive humanitarian assistance when in need.

2.3.3. Obligations after the State has given consent

“Once relief actions are accepted in principle, the authorities are under an obligation to cooperate, in particular by facilitating the rapid transit of relief consignments and by ensuring the safety of convoys”[31].

The Convention on the Safety of United Nations and Associated Personnel prohibits making United Nations and associated personnel, their equipment and premises “the object of attack or of any action that prevents them from discharging their mandate” (art. 7(1)). Moreover, “States Parties shall take all appropriate measures to ensure the safety of United Nations and associated personnel” (art. 7(2)). The intentional commission of such attacks, and the threat, attempt or participation in such attacks, constitute crimes punishable under the national law of the States Parties to the Convention (art. 9).

In international armed conflicts, article 71(2) of Additional Protocol I provides that relief “personnel shall be respected and protected”, and article 70(4) of the same Protocol states that “the parties to the conflict shall protect relief consignments and facilitate their rapid distribution”. In situations of non-international armed conflict, humanitarian workers are, at a minimum, protected under common article 3, which prohibits acts of violence against persons not or no longer taking active part in the hostilities.

Article 70(3) (c) of Additional Protocol I prohibits the diversion of relief consignments from the purpose for which they are intended and the delay of their forwarding. This rule applies both to the parties to the conflict and to all States parties to the Protocol. The norm prohibits for instance the use of humanitarian relief for military purposes (e.g. using food aid for troops rather than for civilians). The only exception allowed is the case of “urgent necessity in the interest of the civilian population concerned”. In such cases, delay or diversion is allowed if it is “virtually impossible to do otherwise”[32]. For instance, diversion of food aid would be allowed “when there is a delay in the transport of perishable foodstuffs, always provided that they are replaced by fresh provisions as soon as normal conditions are restored”[33]. Article 60 of the Fourth Geneva Convention likewise states: “[...] the Occupying Power shall in no way whatsoever divert relief consignments from the purpose for which they are intended [...]”.

2.4. Implementing the right to adequate food in emergencies

2.4.1. Domestic courts

The justiciability of economic, social and cultural rights (i.e. the possibility to enforce them through court actions) has long been debated. For long, many held that, differently from civil and political rights (which are immediately effective and entail “negative” obligations for the State, i.e. obligations not to take conduct violating those rights), economic, social and cultural rights (including the right to adequate food) were not justiciable, as they were to be realized progressively through “positive” action by the State.

It is now generally accepted that economic, social and cultural rights also entail obligations with immediate effect (e.g. non-discrimination; see section 2.2.2 above), and that these are justiciable. Moreover, the obligation to respect (i.e. to refrain from hindering existing access to food) is a “negative” obligation similar to that for civil and political rights, and is therefore justiciable. This evolution in thinking is witnessed by the 2002 report of the Special Rapporteur on the Right to Food (see section 2.4.2. below), that strongly argues in favour of the justiciability of the right to adequate food[34].

Moreover, justiciable aspects exist also with regard to the “progressive” realization of the right to adequate food. An interesting case, albeit with regard to the right to adequate housing, is the Grootboom case, in which the Constitutional Court of South Africa held that a standard of “reasonableness” is to be used to review policies to progressively realize economic, social and cultural rights, taking into account the availability of resources.[35]

However, in emergency situations, the effectiveness of court remedies may be limited. Court procedures are often complex and time-consuming, compared to the urgent needs characterising emergencies (although interim measures, e.g. to terminate violations of the obligation to respect, may be sought). More fundamentally, natural and, even more, man-made disasters may entail the breaking down of the rule of law and the disruption of public institutions like courts.

2.4.2. International human rights institutions

In the United Nations system, there are two types of organs monitoring the implementation of human rights law: the Charter-based organs, established under the UN Charter, and the treaty-based organs, established under other international treaties.

The most important Charter-based body is the Commission on Human Rights, established by ECOSOC under article 68 of the UN Charter (ECOSOC Resolution No. 5 of 1946). The Commission in turn established the Sub-Commission on the Promotion and Protection of Human Rights (formerly called Sub-Commission on Prevention of Discrimination and Protection of Minorities) and a number of other bodies. The Commission and the Sub-Commission examine complaints on human rights violations under two main procedures (so-called 1503 and 1235 procedures). Moreover, the Commission can establish a Working Group or appoint a Special Rapporteur to monitor human rights implementation on the basis of a “thematic” approach (“themes” can be a specific right, a category of right-holders like IDPs, etc.).

Traditionally, these procedures have been rarely used for violations of economic, social and cultural rights, including the right to adequate food. However, since the 1990s this situation has changed. For example, violations of food rights have been denounced in some reports issued by Special Rapporteurs for specific countries, namely with regard to obstacles to the passage of humanitarian consignments, including foodstuffs[36]. In 2000, the Commission on Human Rights appointed a Special Rapporteur on the right to food for a period of three years[37]. The Special Rapporteur inter alia presented two reports on the right to adequate food to the Commission on Human Rights (7 February 2001, Doc. E/CN.4/2001/53, and 10 January 2002, E/CN.4/2002/58), presented a report to the General Assembly (23 July 2001, A/56/210), and carried out a mission to Niger (23 January 2002, E/CN.4/2002/58/Add.1). In his work, the Special Rapporteur has attached particular importance to the realization of the right to adequate food in emergencies, and has taken position on situations like the conflict in Afghanistan (see particularly the report of 10 January 2002).

As for treaty-based bodies, committees to monitor the implementation of human rights treaties were established by the CERD, the ICCPR, the CEDAW, the CAT and the CRC. All these committees receive reports from the States parties to the relevant treaty. Furthermore, the ICCPR Human Rights Committee, the Committee on the Elimination of Racial Discrimination and the Committee against Torture can receive complaints from States and from individuals, provided that the State concerned has recognized their competence to do so (this explicit recognition is not necessary for complaints by States under the CERD). The Committee on the Elimination of All Forms of Discrimination against Women can consider complaints from individuals or groups of individuals (Optional Protocol to the Convention on the Elimination of all Forms of Discrimination Against Women, adopted in 1999).

Unlike other human rights treaties, the ICESCR provides for a system of reports but did not establish a specific treaty body. Its implementation was thus monitored by an ECOSOC working group. However, in 1985, ECOSOC established the Committee on Economic, Social and Cultural Rights (CESCR) to receive the reports submitted by the States parties under the ICESCR (ECOSOC Resolution 17 of 1985). The reports must indicate the measures adopted and the progress made in realizing the rights recognized in the Covenant. They may also indicate “factors and difficulties affecting the degree of fulfilment of obligations under the [...] Covenant” (ICESCR, art. 17(2)). In addition, the CESCR receives information on the implementation of the Covenant through written statements and oral submissions by non-governmental organizations. The CESCR concludes its consideration of States parties’ reports by issuing “Concluding Observations”. Moreover, the ECOSOC may transmit the reports to the Commission on Human Rights “for study and general recommendation or, as appropriate, for information” (ICESCR, art. 19). No State or individual complaint procedure has so far been established[38].

The coherence and coordination of the UN human rights system has been improved with the establishment of a UN High Commissioner for Human Rights (General Assembly Resolution 48/141 of 1994). The High Commissioner is “the United Nations official with principal responsibility for United Nations human rights activities” and has the task, inter alia, of “promot[ing] and protect[ing] the effective enjoyment by all of civil, cultural, economic, political, and social rights” and of “coordinat[ing] the human rights promotion and promotion activities throughout the United Nations system” (Resolution 48/141, para. 4(a) and (i)). Moreover, the High Commissioner is “to engage in a dialogue with all Governments in the implementation of his/her mandate with a view to securing respect for all human rights” (Resolution 48/141, para. 4(g)); in this function, he/she can request governments to provide information, carry out on-site visits, investigate specific violations, etc. In several countries, the Office of the High Commissioner has field offices that can take action in case of violation of food rights.

Overall, UN human rights institutions monitoring the realization of the right to adequate food have strengths and weaknesses. Strengths include for instance the existence of impartial, quasi-judicial institutional machinery and the availability of flexible institutions such as the High Commissioner and Special Rapporteurs (that can directly intervene in emergency situations e.g. by carrying out on-site visits, denouncing violations, etc.). Weaknesses include the time-consuming nature of monitoring procedures (compared to the urgent needs characterising emergency situations), the absence of a complaint-based mechanism under the ICESCR, and the lack of any enforcement mechanism in case of established non-compliance.

Human rights institutions are also in place at regional level: the European Court of Human Rights; the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights; and the African Commission on Human and Peoples’ Rights (a Protocol to the African Charter establishing an African Court of Human and Peoples’ Rights was adopted in 1998 but is not yet in force). Due to space constraints, the procedural norms relating to these institutions are not covered in this study. Suffice to say that in the European and American systems (not in the African one) economic, social and cultural rights are treated separately from civil and political rights. Under both systems, it is not possible to have recourse to the relevant regional court to obtain redress for violations of the right to adequate food. Separate monitoring systems are in place for the European Social Charter (State reports to the European Committee on Social Rights and collective complaints submitted to the Committee by NGOs and trade unions) and for the Protocol of San Salvador (State reports to the Inter-American Commission on Human Rights).

2.4.3. International humanitarian law

Measures to ensure full respect for the rules of international humanitarian law include both measures to be adopted once the armed conflict has begun and measures to be adopted in peacetime[39]. These measures are necessary to ensure that both civilians and the military personnel are familiar with the rules of humanitarian law; that the structures, administrative arrangements and personnel required for compliance with the law are in place; and that violations of humanitarian law are prevented and punished.

States have primary responsibility for effectively implementing international humanitarian law through measures adopted at national level by the government, by the legislature, by the courts, by the armed forces, or by other State bodies. Measures include for instance:

Some of these measures require the adoption of legislation or regulations; others require the development of educational programmes, the recruitment and/or training of personnel, the production of identity cards and other documents, the setting up of special structures, and the introduction of planning and administrative procedures.

Measures have also been taken at the international level to deal with violations of humanitarian law. An International Fact-Finding Commission has been set up and States are encouraged to use its services. Tribunals have been set up to deal with violations committed during the conflicts in Rwanda and in the former Yugoslavia, and an International Criminal Court has been established under the 1998 ICC Statute (see below).

2.4.4. Individual criminal responsibility

Particularly serious violations of international law create an international responsibility (not only of States but also) of the individuals committing them, whether or not acting as State organs. International humanitarian law envisages the individual criminal liability of persons committing or ordering the commission of grave breaches of its rules (war crimes; see e.g. Fourth Geneva Convention, arts. 146 and 147, and Additional Protocol I, art. 11 and 85). War crimes are also punishable under customary international law and under the ICC Statute (art. 8). The 1948 Genocide Convention establishes the criminal liability of persons committing acts amounting to genocide (art. IV). Customary international law and the ICC Statute (art. 7) establish the criminal liability of persons committing crimes against humanity. As discussed earlier in this chapter, the intentional deprivation of access to food under specific circumstances can amount to these crimes.

The punishment of these crimes firstly rests with domestic courts. Jurisdiction rules vary according to the crime. With regard to war crimes, universal jurisdiction and the rule aut dedere aut iudicare (extradite or prosecute) apply (see e.g. Fourth Geneva Convention, art. 146(2)). Therefore, any State in the territory of which a suspected perpetrator is found is obliged to try such person or to extradite him/her to another country where he/she can be tried. As for genocide, the universality principle is not mandatory under article 6 of the 1948 Genocide Convention; however, it is recognized as a rule of customary international law[40].

Furthermore, international criminal institutions have recently been established. Tribunals have been established by the Security Council for crimes committed in the Former Yugoslavia and in Rwanda (in 1993 and 1994, respectively)[41]. An International Criminal Court has been established on a permanent basis under the ICC Statute adopted in 1998.

2.4.5. Intervention by the Security Council

Violations of the norms of international humanitarian law that are relevant for the right to adequate food may also be addressed by the United Nations Security Council. In recent years, the Security Council has intervened under Chapter VII in several humanitarian crises to call parties to the conflict (both States and non-State entities) to allow humanitarian access, which includes food aid.

A leading resolution in this regard is Resolution 688 (1991), adopted in the aftermath of the 1991 Gulf War. The resolution, “reaffirming the commitment of all Member States to the sovereignty, territorial integrity and political independence of Iraq and of all Sates in the area”, “insisted” “that Iraq allow immediate access by international humanitarian organizations to all those in need of assistance in all parts of Iraq” (preamble and paragraphs 1 and 3). It is not possible to review here all the other resolutions with similar content that have been adopted since the 1990s. Just to mention an example, Resolution 1258 (1999), concerning the civil war in the Democratic Republic of Congo and adopted after the 1999 Lusaka Ceasefire Agreement, “calls for safe and unhindered access for humanitarian assistance to those in need in the Democratic Republic of Congo and urges all parties to the conflict to guarantee the safety and security of United Nations and humanitarian personnel and to respect strictly the relevant provisions of international humanitarian law” (para. 11).

The intervention of the Security Council under Chapter VII creates a legal obligation for States to grant humanitarian agencies access to civilians. However, violations of this obligation do not entitle automatically other States or international organizations to intervene and distribute relief against the will of affected States, unless the Security Council specifically authorises it. This has been done in some exceptional circumstances, where States were authorised “to use all necessary means”, including armed force, to give humanitarian agencies access to persons in need. For example, during the conflict in Somalia, Resolution 794 (1992) authorised the UN Secretary-General and all Member States “to use all necessary means to establish as soon as possible a secure environment for humanitarian relief operations in Somalia” (para. 10).

[16] Human Rights Committee, General Comment 6, 30 April 1982, UN Doc. A/37/40(1982), paragraph 5.
[17] As for the accessibility aspect, the General Comment builds on economic literature noting that famines are not caused only by insufficient global food supplies (i.e. food availability), but also by the lack of “entitlements” enabling people to procure available food; Jean Drèze and Amartya Sen, Hunger and Public Action, Oxford, Clarendon Press, 1989.
[18] International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Geneva-Dordrecht, 1987, paragraph 2089.
[19] Ibidem, paragraphs 2093 - 2095.
[20] Ibidem, paragraph 2097.
[21] Committee on Economic, Social and Cultural Rights, General Comment 8, The Relationship between Economic Sanctions and Respect for Economic, Social and Cultural Rights, 5 December 1997, E/C.12/1997/8.
[22] Inter-American Court of Human Rights, Velásquez Rodríguez v. Honduras, 29 July 1988, Series C, No. 4, paraagraph 172. The case involves the “disappearance” of a person. The Court found violations of articles 1, 4, 5 and 7 of the American Convention on Human Rights. See also Human Rights Committee, Delgado Paez v. Colombia, (Communication 195/1985), UN Doc. A/45/40, in Report of the Human Rights Committee 1990, Volume II. The case concerned threats to a person. The Committee found a violation of article 9 of the ICCPR (right to security) because “the State Party has not taken, or has been unable to take, appropriate measures to ensure Mr. Delgado’s right to security of the person” (p. 43). Moreover, see European Court of Human Rights, Osman v. United Kingdom, 28 October 1998, Reports, 1998-VIII, in particular paragraph 115; no violation was found in this case.
[23] This is a handbook of the rules and procedures developed over the years by the FAO Consultative Sub-Committee on Surplus Disposal, established in 1954 to monitor shipments of surplus agricultural produce used as food aid, with a view to minimising their harmful impact on commercial transactions.
[24] International Court of Justice, Case Concerning the Military and the Paramilitary Activities in and against Nicaragua (Nicaragua v. United States) (Merits), 27 June 1986, ICJ Reports 1986, p. 14, paragraphs 239 - 245.
[25] International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Geneva-Dordrecht, 1987, paragraphs 2795 and 2805.
[26] Ibidem, paragraph 4886.
[27] Ibidem, paragraph 4885.
[28] Ibidem, paragraph 4884.
[29] Ibidem, paragraphs 2805 and 2808.
[30] Ibidem, paragraph 4885.
[31] Ibidem, paragraph 4888.
[32] Ibidem, paragraph 2846.
[33] Ibidem, paragraph 2847.
[34] Commission on Human Rights, Special Rapporteur on the Right to Food, The Right to Food, Report submitted in accordance with Commission on Human Rights Resolution 2001/25, 10 January 2002, E/CN.4/2002/58.
[35] Ms Grootboom and others were homeless illegally occupying a piece of land for residential purposes. On the basis of a magistrate order, they were forcibly evicted by the local municipality and were left with no housing. They then filed a lawsuit to enforce their right to adequate housing, recognized in the South African Constitution. The Cape High Court ordered the government to provide them basic shelter (Irene Grootboom and Others v. Oostenberg Municipality, 2000(3) BCLR 277). Upon appeal, the Constitutional Court examined whether the measures adopted by the government within its comprehensive housing programme were “reasonable” for the progressive realization of the right to adequate housing. The Court found that the programme was not “reasonable” in that it did not considered the short-term housing needs of those “in desperate need”, and ordered that shelter be provided to these persons (Government of the Republic of South Africa and Others v. Irene Grootboom and Others, case CCT 11/00, 4 October 2000, reported in 2000(11) BCLR 1169(CC)).
[36] See, for example, Commission on Human Rights, Report of the Special Rapporteur on the Situation of Human Rights in the Territory of the Former Yugoslavia, 21 February 1994, E/CN.4/1994/110, paragraph 71.
[37] Commission on Human Rights, Res. 2000/10, 17 April 2000, E/CN.4/RES/2000/10.
[38] An Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, envisaging the right of individuals or groups to submit complaints concerning violations of the Covenant, was recommended by the 1993 Vienna Declaration and Plan of Action on Human Rights (Part II, para. 75) and drafted by the CESCR in 1996. However, such Protocol has not yet been adopted. See the Report of the Committee on Economic, Social and Cultural Rights on a Draft Optional Protocol for the Consideration of Communications in Relation to the International Covenant on Economic, Social and Cultural Rights, 18 December 1996, E/CN.4/1997/105.
[39] This section draws on ICRC, Implementing International Humanitarian Law: From Law to Action, available on the ICRC website.
[40] See Yoram Dinstein, International Criminal Law, in 5 Israel Yearbook on Human Rights, 55 (1975), published in Henry J. Steiner and Philip Alston, International Human Rights in Context, Oxford and New York, 1996, pp. 1027 - 1029. See also American Law Institute, Restatement (Third), Foreign Relations Law of the United States, 1987, paragraph 404.
[41] Ad Hoc Tribunal on War Crimes in the Former Yugoslavia, created for the prosecution of persons responsible for serious violations of international humanitarian law in the territory of the former Yugoslavia, UN Security Council Resolution 827 (1993); International Criminal Tribunal for Rwanda, created for the persecution of persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring States, Security Council Resolution 955 (1994).

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