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3.1. Introduction

This chapter identifies the principles and standards that are applicable to food and food-related aid, once relevant institutions (international organizations, donor governments, NGOs, etc.) have determined to provide aid. Identifying such principles and standards presents important difficulties:

In this chapter, the principles and standards identified are those that would be relevant for relief operations by States and international organizations, in particular intergovernmental organizations. With regard to intergovernmental organizations, this builds on an important assumption. International treaties are ratified by, and binding upon, States. Therefore, principles and standards on aid programmes stemming from these treaties are to be followed by States rather than by international organizations. However, it is argued here that they are to be taken into account by a UN agency. First, the protection of human rights is one of the fundamental purposes of the United Nations (UN Charter, art. 1), and is seen as a cross-cutting issue of interest for all organizations of the UN system. Secondly, the fact that many relevant treaties have been adopted by UN bodies or conferences, and that the overwhelming majority of the States members of the United Nations and of organizations of the UN system have ratified them, may be considered as entailing that the fundamental principles stemming from those treaties are to be taken into account by organizations of the UN system.

Because of these difficulties and assumptions, this contribution can only constitute a further step in the ongoing debate over principles and standards applicable to food and food-related aid programmes. While for some issues the norms of international law are relatively clear and undisputed (e.g. impartiality and non-discrimination), for others the law is much less clear, and it is only possible to summarise ongoing debates and set the terms of the problem (e.g. participation). In any case, addressing these issues contributes to a better understanding of the implications of the right to adequate food, which in emergencies is strictly linked to the distribution of food and food-related aid.

In the chapter, reference is made to assistance and protection. Assistance is the provision of aid (foodstuffs, shelter, medical services, etc.) to populations affected by natural or man-made disasters. Protection activities are aimed at protecting populations from violence, discrimination, and other violations of human rights and humanitarian law.

3.2. Impartiality and non-discrimination

3.2.1. Definitions

Impartiality is the principle whereby humanitarian operators cannot be biased in favour of one of the parties to an armed conflict or, more generally, in favour of a particular national, religious, political, social or other group[42]. Impartiality is strictly linked to the principle of neutrality, i.e. the principle by which humanitarian organizations may not take sides in hostilities.

Discrimination is “any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms”. However, “not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under [human rights law]”[43].

While impartiality and non-discrimination are different principles of international law, they are dealt with together in this section, as the implications they have for aid programmes are strictly related.

3.2.2. Impartiality and non-discrimination under international law

International humanitarian law affirms both the principle of non-discrimination and that of impartiality. Non-discrimination is affirmed for instance in common article 3(1), in articles 13, 27(3) and many others of the Fourth Geneva Convention, in article 75 of Additional Protocol I, and in articles 2(1) and 4(1) of Additional Protocol II. The principle of impartiality is affirmed with specific regard to the delivery of humanitarian relief (common article 3(2) explicitly refers to “an impartial humanitarian body”; similar expressions are found in article 59(2) of the Fourth Geneva Convention, article 70(1) of Additional Protocol I, and article 18(2) of Additional Protocol II).

Non-discrimination is also a fundamental principle of international human rights law (UN Charter, arts. 1(3), 13(1) and 55(c); UDHR, arts. 1, 2 and 7; ICCPR, arts. 2(1), 3, 4(1), 26 and several other provisions; ICESCR, arts. 2(2) and 3; CRC, art. 2; the CERD and the CEDAW; ECHR, art. 14; ACHR, arts. 1 and 24; and the African Charter, arts. 2, 3 and 18(3)). Specifically on the right to adequate food, the principle of non-discrimination is stated in articles 11 and 3 of the ICESCR. As for the right to life, it stems from articles 6 and 3 of the ICCPR.

The principle of non-discrimination applies in emergency situations. Article 4 of the ICCPR allows suspension of certain obligations in time of public emergency “provided that such measures [...] do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin”. Similar clauses are included in article 27(1) of the ACHR and article 15(1) of the ECHR; the latter provision allows derogations “provided that such measures are not inconsistent with [the Contracting Party’s] other obligations under international law”, which certainly include the obligations enshrined in article 4(1) of the ICCPR. Moreover, while the right to adequate food is to be realized “progressively” under article 2 of the ICESCR, non-discrimination in the enjoyment and exercise of that right is an obligation with immediate effect (see section 2.2.2 above).

The principle of non-discrimination against refugees in public relief programmes is affirmed in articles 3, 20 and 23 of the 1951 Refugee Convention. As for IDPs, although they do not enjoy a special legal status under international law, they are protected against discrimination under the general norms of human rights and humanitarian law (cf. principle 1(1) of the UN Guiding Principles on Internal Displacement).

Impartiality and non-discrimination were also at stake in the 1986 Nicaragua Case, where the International Court of Justice found that the support given by a State to an armed group involved in an internal armed conflict could not be regarded as humanitarian aid, as it was limited to a party to the conflict only, and therefore violated the non-discrimination and impartiality principles with which humanitarian operations must comply[44].

The principle of impartiality was further affirmed in soft-law instruments, such as Security Council Resolution 1296 (2000) (para. 11), General Assembly Resolutions 46/182, 45/100 and 43/131, and the 1996 World Food Summit Plan of Action (para. 43).

3.2.3. The application of impartiality and non-discrimination to food and food-related aid

Non-discrimination and impartiality do not entail that food and food-related aid is to be distributed equally to all individuals, groups or parties to an armed conflict. Rather, they mean that food and food-related aid has to be distributed only on the basis of need, regardless of any other consideration. The only ground on which a specific group can be given special protection and assistance is the existence of particular needs (e.g. vulnerable groups such as children, the elderly, etc.; see below). Therefore, the imposition of allocation conditions for the passage of humanitarian convoys, such as the requirement that similar quantities of aid be distributed to the group benefiting from the passage and to the entity allowing the passage, have no legal basis[45].

Most humanitarian agencies explicitly apply the principle of non-discrimination in their relief programmes. For instance, the Code of Conduct for the International Red Cross and Red Crescent Movement and NGOs in Disaster Relief states that “aid is given regardless of the race, creed or nationality of the recipients and without adverse distinction of any kind”, and that “aid priorities are calculated on the basis of need alone” (principle 2).

3.3. Special protection and assistance for vulnerable groups

In its General Comment 12, the CESCR stated that “priority in food aid should be given to the most vulnerable populations” (para. 38). Special protection and assistance for vulnerable groups flows from the principle of distribution of aid according to need only (see section 3.2 above) and from specific norms of international humanitarian and human rights law.

As for international humanitarian law, article 70(1) of Additional Protocol I (applicable in international armed conflicts) states: “in the distribution of relief consignments, priority shall be given to those persons, such as children, expectant mothers, maternity cases and nursing mothers, who, under the Fourth Convention or under this Protocol, are to be accorded privileged treatment or special protection” (see also article 23(1) of the Fourth Geneva Convention). Similar norms are applicable in non-international armed conflicts.

Under human rights law, action aimed at granting special protection and assistance for particularly vulnerable groups or individuals is not contrary but complementary to the principle of non-discrimination. Thus, provisions on special measures for some groups and individuals are stated with regard to children (CRC, art. 3(2)), the elderly (e.g. Protocol of San Salvador, art. 17; African Charter, art. 18; etc.), people belonging to minority racial groups (e.g. the CERD, art. 1(4)), etc.

Possible implications for food and food-related aid programmes include taking into account special nutritional needs (e.g. of children, expecting mothers, etc.) and other particular needs (e.g. attention to those not able to work within food-for-work programmes). For instance, with regard to aid provided under the 1999 Food Aid Convention, article VIII of the Convention states that “members shall pay attention to meeting the particular nutritional needs of [...] children”, and that “food aid for free distribution should be targeted on vulnerable groups”. Similar principles are also reflected and operationalized in internationally recognized, non-binding codes of conduct (see e.g. the “targeting standard” for food aid of the Sphere Project, and guidance note 1 of that standard).

Under international treaties and soft-law instruments, vulnerable groups include:

3.4. Gender

Women are particularly affected by natural and man-made disasters. Discrimination suffered by women in ordinary periods (as for access to natural resources, employment, credit, training, extension, etc.) becomes more acute in periods of emergency. Attention to gender is also justified by the fact that in armed conflicts the number of female-headed households increases, as many men are dead or are at war.

Gender equality is one of the fundamental principles of international human rights law. It encompasses non-discrimination against women and affirmative action in favour of women. The non-discrimination provisions of human rights law have already been dealt with; all the norms quoted in section 3.2.2 above include sex/gender as a prohibited ground of discrimination, and are not repeated here. Article 2 of the CEDAW prohibits discrimination against women in a very comprehensive way, with regard not only to State action but also to non-State entities (cf. art. 2(e)). Discrimination against women is defined in the CEDAW as “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field” (art. 1). The principle of non-discrimination remains applicable in emergency situations even where human rights are suspended (cf. art. 4 of the ICCPR).

The second aspect of the principle of gender equality under human rights law is affirmative action. While the removal of de jure discrimination is necessary, it is often not sufficient to ensure de facto equality between men and women. The principle of affirmative action is stated in article 4(1) of the CEDAW, under which “adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination [...]”.

Under international humanitarian law, women are entitled to the same protection as men. The general provisions on non-discrimination quoted above (section 2.2) include sex as a prohibited ground for adverse distinction. Moreover, several provisions of international humanitarian law provide for additional protection for women (e.g. providing for separate detention quarters and sanitary facilities for female prisoners of war, providing for special protection and respect for expectant mothers, etc.). Special attention is given to pregnant women and mothers. Under the Fourth Geneva Convention, for instance, consignments of essential foodstuffs intended for expectant and nursing mothers must be allowed free passage (art. 23); internees that are expectant or nursing mothers must receive food in addition to standard daily food rations, in proportion to their physiological needs (art. 89); occupying powers may not hinder the application of food-related preferential measures which benefit expectant mothers and mothers of children under seven years and which have been adopted prior to the occupation (art. 50)[52].

For aid provided under the 1999 Food Aid Convention, article VIII of the Convention states that “members shall pay attention to meeting the particular nutritional needs of women”.

Women’s empowerment is dealt with at length in numerous provisions of non-binding international declarations, particularly the Beijing Declaration and Platform for Action (e.g. paragraphs 13, 16, 19, 24, 35, etc. of the Declaration; cf. also paragraph 43 of the 1993 Vienna Declaration).

3.5. Emergency relief and longer-term concerns

Commitment Five of the World Food Summit Plan of Action commits States to “endeavour to prevent and be prepared for natural disasters and man-made emergencies and to meet transitory and emergency food requirements in ways that encourage recovery, rehabilitation, development and a capacity to satisfy future needs”. Therefore, while focusing on urgent and immediate needs, food and food-related aid programmes should (the Plan of Action is not a binding document) take into account longer-term concerns. For aid provided under the Food Aid Convention, this Convention states that “the provision of food aid in emergency situations should take particular account of longer-term rehabilitation and development objectives in the recipient countries” (art. VIII(d)); moreover, “in planning food aid operations, due account shall be taken of [...] the effects that the delivery of the aid may have on marketing of local harvests in the recipient country” (art. X (b)).

This approach is also embodied in internationally recognized, not legally binding codes of conduct (NGO Code of Conduct on the Right to Adequate Food, art. 7.6, and the Code of Conduct for the International Red Cross Movement and NGOs, principle 8).

Taking into account longer-term rehabilitation and development objectives may have implications for:

3.6. Participation

Increasingly, scholars refer to the existence of a right to participation under international law[53]. Several norms are indicated as foundations for such right, particularly human rights that are instrumental to participation, such as the rights to freedom of peaceful assembly and association (UDHR, art. 20; ICCPR, arts. 21 and 22; CRC, art. 15(1); ACHR, arts. 15 and 16; ECHR, art. 11; and the African Charter, art. 10 and 11), and the right to political participation (UDHR, art. 21; ICCPR, art. 25; CERD, art. 5(c); CEDAW, art. 7; etc.). Under most derogation clauses, these rights can be suspended in times of public emergency, provided that the criteria specified in the applicable treaties (including e.g. non-discrimination) are complied with. However, the right to political participation is non-derogable under article 27(2) of the ACHR. Human rights law provisions on non-discrimination on the basis of sex (CEDAW, art. 2; UDHR, art. 2; ICCPR, art. 3; ICESCR, etc.) are relevant for the equal right of participation of men and women.

Participation is also referred to in a large number of soft-law instruments (e.g. fourth paragraph of the WFS Declaration and paragraphs 46, 56, 58, 62, etc. of the WFS Plan of Action; principle 10 of the Rio Declaration; paragraphs 8, 24, 25, etc. of the Vienna Declaration and paragraphs 67, 73, etc. of the annexed Plan of Action; paragraphs 16, 19, 20, 25 etc. of the Beijing Declaration and paragraphs 23, 47, etc. of the relevant Platform for Action; and principle 18(3) of the UN Guiding Principles on Internal Displacement, specifically concerning women’s participation).

On the other hand, others have noted the obstacles to the recognition of a legal right to participation, namely the fact that the above-mentioned instruments only indirectly refer to participation as such and/or are not legally binding, and that they do not adequately make clear who is the right-holder (whether individuals or groups, etc.), who is the duty-bearer (whether the national government and/or international bodies) and what is the extent of participation[54].

In any case, where a “progressive” interpretation of international law entailing the existence of a right to participation is accepted, it is not clear how this right relates to food and food-related aid programmes designed and implemented by international and non-governmental agencies, and how the right to participation is to be given practical effect in emergency situations, where time constraints are very hard and the social structures of affected communities (i.e. the potential vehicle for participation) are often disrupted.

Outside the domain of international law, efforts to clarify methods to incorporate participation in food aid programmes were made in the context of the Sphere Project. For instance, within the Minimum Standards in Food Aid, the “participation standard” reads: “recipients of food aid have the opportunity to participate where possible in the design, management and monitoring of the programme”. Key indicators of realization of this standard include: “representatives from across the disaster affected population are consulted and are involved in decision making that relate to needs assessment and programme design”; “people from the affected population (both women and men) participate in the management and implementation of the food aid programme”. Other standards envisage participation in all the different stages of food aid operations, from needs assessment (analysis standard 1, at key indicator 2) to targeting criteria (targeting standard, at key indicator 1), to programme implementation (capacity standard 2) and to aid distribution (distribution standard, at key indicator 1 and guidance note 1). As for aid distribution, for example, people’s involvement in food aid programmes is to be attained inter alia through distribution committees representing “gender, ethnicity and socio-economic status” as well as “acknowledged political leaders, traditional community leaders and religious leaders”.

Some humanitarian agencies have pledged to develop and adopt participatory approaches in their relief programmes. The Code of Conduct for the International Red Cross and Red Crescent Movement and NGOs in Disaster Relief, for instance, states that “ways shall be found to involve programme beneficiaries in the management of relief aid”, and commits participating humanitarian agencies to “strive to achieve full community participation in [their] relief and rehabilitation programmes” (principle 7).

3.7. Environmental concerns

General Comment 12 of the CESCR states that the core content of the right to food implies the accessibility of such food in ways that are sustainable and that do not interfere with the enjoyment of other human rights (para. 8). The concept encompasses economic, social and environmental sustainability, which needs to be taken into account also in emergencies, although under such circumstances priority may have to be given to freedom from hunger and the right to life.

3.7.1. The environmental impact of humanitarian crises

All natural and man-made disasters involve some environmental impact. In armed conflicts, the conduct of the hostilities itself has an impact on the environment. Moreover, large refugee and IDP camps may contribute to the degradation of natural resources such as forests, soils and water, and, more generally, of biodiversity[55]; environmental degradation may in turn negatively affect health and social conditions of people living in camps and of the resident population (e.g. through contaminated water). In this context, humanitarian operations can also have a negative impact on the environment. For example, the way a refugee camp is conceived (site selection and preparation, organization of the camp, sanitation, etc.) and the kind of aid that is provided (e.g. the variety of seeds in a programme supplying agricultural inputs) may affect natural resources. The environmental impact of food aid may include forest degradation (due to the gathering of fuelwood for cooking purposes), air pollution (due to the burning of cooking fuel), waste (discarded food packaging etc.) and the introduction of pests.

3.7.2. Environment protection in armed conflicts

In armed conflicts, international humanitarian law contains norms aimed at protecting the environment. These norms are indirectly relevant for the right to adequate food, as natural resources constitute a major means for the production of food. Additional Protocol I (applicable in international armed conflicts) prohibits “methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment” (art. 35(3)). Moreover, under article 55(1) of the same Protocol, “care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage”. Article 55 also prohibits “the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population”, as well as “attacks against the natural environment by way of reprisals”. Also relevant are article 56 of Additional Protocol I and article 15 of Additional Protocol II (“protection of works and installations containing dangerous forces”).

Moreover, the 1976 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques prohibits “military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party” (art. 1)[56].

Relevant provisions are also contained in the Draft International Covenant on Environment and Development[57]. Under article 32 of the Draft Covenant, devoted to “military and other hostile activities”, States parties must observe, outside the areas of armed conflict, all international environmental rules applicable in times of peace, and, within areas of armed conflict, must take care to protect the environment against avoidable harm. Moreover, parties must “not employ or threaten to employ methods or means of warfare which are intended or may be expected to cause widespread, long-term, or severe harm to the environment”, and must “not use the destruction or modification of the environment as a means of warfare or reprisal”.

3.7.3. Environment concerns and principles for food and food-related aid

Although given the potential environmental impact of humanitarian operations some form of environmental screening is desirable, there is no international law rule requiring humanitarian agencies to assess the environmental impacts of their food and food-related aid programmes. This is because in emergency situations aid aims at meeting the urgent and immediate needs of affected populations, and hard time constraints may make environmental impact assessments impossible.

Outside the specific context of humanitarian operations, international law contains numerous norms requiring an environmental impact assessment for activities potentially having a negative impact on the environment (e.g. 1992 Rio Declaration on Environment and Development, principle 17; 1992 Convention on Biological Diversity (CBD), art. 14; 1992 Framework Convention on Climate Change, art. 4(1)(f); 1997 Convention on the Law of the Non-navigational Uses of International Watercourses, art. 12; 1982 Convention on the Law of the Sea, art. 206; as well as regional instruments such as the 1985 ASEAN Agreement on the Conservation on Nature and Natural Resources, the 1991 Espoo Convention on Environmental Impact Assessment in a Transboundary Context, and several regional conventions on the protection of the marine environment).

Moreover, it may be argued that assessing environmental impact constitutes a general principle of international environmental law: as early as 1986 (i.e. before the majority of the above-mentioned documents were enacted), the Experts Group on Environmental Law of the World Commission on Environment and Development identified environmental impact assessment as an “emerging principle of international law”, and stated that “States planning to carry out or permit activities which may significantly affect a natural resource or the environment shall make or require an assessment of their effects before carrying out or permitting the planned activities”[58].

However, the applicability of the norms on environmental impact assessment to food and food-related aid programmes is hindered by two major obstacles:

Lacking well-established international norms on the environmental aspects of food and food-related aid programmes, some humanitarian agencies have adopted their own internal (non-legal) guidelines. An example is provided by the Environmental Guidelines adopted by UNHCR in 1996, which provide for the integration of environmental planning and action into humanitarian assistance operations. As for food aid in particular, the Guidelines provide for the supply of “food in a form which requires the least amount of energy for cooking (e.g. fresh food, grains which have been milled before distribution, etc.)” and for the promotion of recycling of food waste (para. 5.5(f)).

On the other hand, hard-law norms of international environmental law may be relevant for specific issues concerning food and food-related aid. For instance, the distribution of seeds of an inappropriate variety (e.g. some alien species) can have negative impacts on local species through competition, hybridisation and transmission of diseases and parasites. Under article 6(b) of the Convention on Biological Diversity (CBD), the conservation and sustainable use of biodiversity must be integrated, as far as possible and appropriate, and in accordance with the particular conditions and capabilities of each Contracting Party, into relevant sectoral or cross-sectoral plans, programmes and policies. In addition, each Contracting Party is to prevent “the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species” (art.8 (h)). Therefore, from the political and ethical standpoint, it may be argued that organizations of the UN system, while not bound by the CBD, should not, in carrying out their programmes and activities, deliberately violate the fundamental objectives and principles of a treaty adopted by a UN conference, such as the CBD. On the other hand, from the legal point of view, if a humanitarian agency were to provide seed varieties threatening ecosystems, habitats or species in recipient States, parties to the CBD, these States would have a duty to take measures such as preventing the introduction of the seeds in their territory.

Other international standards on the protection of the environment relate to plant and animal health. In particular, pests may be introduced with international food aid causing future outbreaks and thus leading to food insecurity or environmental degradation. Standards set under the International Plant Protection Convention, although not legally binding as such (see section 1.8 above), give guidance on pest control and plant quarantine. Likewise, standards set by the Office international des épizooties) are relevant to animal diseases, vaccination and other such matters. These standards apply equally under normal circumstances as in emergencies, although implementation by national authorities may sometimes become problematic in emergency situations.

As regards pesticides, besides numerous non-binding guidelines and manuals issued by FAO, the Rotterdam Convention on Prior Informed Consent for Certain Hazardous Chemicals and Pesticides in International Trade (adopted in 1998 but not yet in force) is an important tool, for developing countries in particular, to avoid the import of hazardous pesticides as it initiates a decision making mechanism and allows the banning of those chemicals and pesticides which they cannot manage safely.

In 2002, the issue of genetically modified organisms within food and food-related aid was at issue with regard to food aid provided by multilateral agencies to some Southern African countries. The environmental concerns relating to genetically modified products regard the unintentional dissemination of those products, with possible effects on local biodiversity. As it stands now, international law does not contain any norms specifically addressing problems relating to genetically modified organisms within the context of food aid. Ultimately, acceptance of food aid containing genetically modified organisms rests with the government of the recipient State. The introduction of living modified organisms, on the other hand, is governed by the Biosafety Protocol to the CBD.

3.8. Adequacy standards

The right to adequate food includes an adequacy standard, stemming from the wording of article 11 of the ICESCR (“right [...] to an adequate standard of living [...], including adequate food”)[59]. In its General Comment 12, the CESCR clarified the meaning of the adequacy standard, although not in relation to emergency situations. According to the Committee, food must be “in a quantity and quality sufficient to satisfy the dietary needs of individuals”, “free from adverse substances” and “acceptable within a given culture” (para. 8). However, while the ICESCR remains applicable in emergency situations, the adequacy standard may be subject to limitation deriving from lack of resources and time constraints. This is also implicit in the very notion of “progressive” realization of the right to adequate food (see section 1.2.3 above). As for humanitarian assistance, food aid of inadequate quantity may still be better than no aid at all. Food aid of low quality may also be better than none, provided of course that the food is safe for human consumption, as is discussed below.

Various international instruments provide for food standards:

National legislation governing some or all aspects of food safety exists in most countries. Furthermore, in most national legal systems, distributing food that is dangerous or harmful for health is unlawful under tort law and/or criminal law. Therefore, once an institution has decided to distribute food aid, it may be argued that it has a “duty of care” vis-à-vis programme beneficiaries, i.e. it must adopt all appropriate measures to ensure that the food provided does not result in physical harm for the beneficiaries. These standards are of relevance to locally purchased and imported food. In the absence of such legislation, Codex standards are often used to determine safety and fitness for human consumption of food aid.

Besides these norms, however, international law does not contain guidance on adequacy standards for food aid. However, outside the scope of international law, specific standards developed within the Sphere Project may give an indication of practical implementation. For instance, “general nutritional support standard 1: nutrient supply” of the Minimum Standards in Nutrition reads: “people’s nutrient needs are met”. Attached key indicators and guidance notes include standards in terms of intake of vitamins and other nutrient substances, absence of scurvy, pellagra or beri-beri, access to breastmilk or recognized substitutes for infants under six months and overall low levels of malnutrition. The “requirement standard” for food aid reads: “the food basket and rations are designed to bridge the gap between the affected population’s requirements and their own food sources”.

The Sphere Project’s food quality and safety standards should also be mentioned. General nutritional support standard 2 of the Minimum Standards in Nutrition reads: “food that is distributed is of sufficient quality and is safely handed so as to be fit for human consumption”. Attached key indicators include the absence of outbreaks of food-borne diseases caused by distributed food, the absence of complaints from the recipients, the existence of appropriate quality checks, etc. General nutritional support standard 4 states: “food is stored, prepared and consumed in a safe and appropriate manner, both at the household and community level”. In addition, the resource management standard for food aid includes key indicators concerning food aid storage (“storage is safe and clean”, “food commodities are inspected and unfit commodities are certified and disposed of in accordance with standard procedures”, etc.).

A safety issue that was raised in 2002 concerned the suitability for human consumption of genetically modified crops supplied as food aid. As mentioned above (section 3.7.), international law does not contain norms specifically addressing this issue, although they are being discussed by the Codex Alimentarius Commission. It is therefore ultimately for the government of the receiving State to determine whether to accept food aid including genetically modified organisms. An interesting question, to which no clear answer exists at present, is whether the country that refuses such food aid, in the absence of clear scientific basis, is denying the right to have access to food to its citizens, thus violating article 11 of the ICESCR, or whether a country that accepts such food might be considered in violation of the right to adequate food. Guidance could perhaps be obtained from other human rights principles, such as the right to democratic participation, the right to information and the right to informed consent of the intended consumers. Cultural acceptability, which is discussed below, may also be a consideration.

According to the CESCR, “cultural [...] acceptability implies the need also to take into account, as far as possible, perceived non nutrient-based values attached to food and food consumption [...]” (General Comment 12, paras. 8 and 11). In this aspect, the right to adequate food is linked to article 27 of the ICCPR, which recognizes the right of persons belonging to ethnic, religious or linguistic minorities “to enjoy their own culture” (cf. also the CRC, art. 30). Again, in emergency situations the cultural acceptability of food aid is to be pursued as far as consistent with the urgency required and the resources available.

Different cultural aspects may, however, have different relative importance. Religious taboos on certain meats, for instance, may be of such strength that the beneficiaries would rather starve than eat them, which leads to the conclusion that such taboos should always be respected. Habits concerning staples are also important, not only with reference to culture, but also to the prospects of rehabilitation, as production systems may suffer from changed dietary habits, which in turn lead to decreased demand for local produce and hence adverse consequences for local farmers. However, dietary preferences and habits not amounting to taboos may have to be temporarily put aside in order to ensure freedom from hunger and the right to life.

Non-legal instruments like the Sphere Project standards seek to operationalize the cultural aspect of the right to adequate food. General nutritional support standard 3 states: “foods that are provided are appropriate and acceptable to the population”. Key indicators listed are:

[42] For a definition of impartiality, see 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 2800 - 2802; and Fundamental Principles of the International Red Cross and Red Crescent Movement, Principle of Impartiality.
[43] Human Rights Committee, General Comment 18, Non-discrimination, 10 November 1989, parasgraphs 7 and 13. Cf. also the definition of discrimination in article 1 of the CEDAW (see section 3.4. below).
[44] International Court of Justice, Case Concerning the Military and Paramilitary Activities in and against Nicaragua, Nicaragua v. United States of America, Merits, 27 June 1986, ICJ Reports 1986, p. 14, paragraphs 239 - 245.
[45] Requirements of this kind were for instance imposed in the 1992 - 1995 armed conflict in Bosnia and Herzegovina. On these episodes, see Special Rapporteur of the Commission on Human Rights, Situation des droits de l’homme dans le territoire de l’ex-Yugoslavie, 21 February 1994, E/CN.4/1994/110, paragraphs 65, 69 and 71.
[46] Under human rights law, a child is defined as “every human being below the age of eighteen years unless under the law applicable to the child majority is attained earlier” (CRC, art. 1).
[47] See also principle 4(2) of the UN Guiding Principles on Internal Displacement.
[48] Article 1 of the Declaration on the Rights of Disabled Persons (General Assembly Resolution 3447 (XXX), 9 December 1975) defines “disabled person” as “any person unable to ensure by himself or herself, wholly or partly, the necessities of a normal individual and/or social life, as a result of deficiency, either congenital or not, in his or her physical or mental capabilities”. Armed conflicts bring about great numbers of disabled people, mainly because of wounds suffered in battles and by landmines. Moreover, an alarming practice in armed conflicts, especially in Africa, is the mutilation of hands, arms and legs of civilians. Children are particularly vulnerable to disability in armed conflicts, notably due to landmines.
[49] See also principle 4(2) of the UN Guiding Principles on Internal Displacement.
[50] A particularly difficult issue concerns the relationship between refugees/IDPs living in camps and the local population residing in the surrounding area. In countries with very low standards of living, targeting aid exclusively on refugee and IDP camps can create unfair disparities (and therefore tensions) between people living in camps and the resident population.
[51] See for instance principle 4(2) of the UN Guiding Principles on Internal Displacement; UNGA Resolution 54/145 of 1999, relating to unaccompanied refugee minors, paragraph 6; Commission on Human Rights Resolution 85 of 2000, paragraph 32(a), (c) and (d).
[52] On sex/gender within international humanitarian law, see Charlotte Lindsey, 2001, Women Facing War, ICRC, available online on the ICRC website.
[53] On this debate, see e.g. Celia R. Taylor, The Right of Participation in Development Projects, in Konrad Ginther, Erik Denters and Paul de Waart, Sustainable Development and Good Governance, Dordrecht - Boston - London, 1995, pp. 204 - 229.
[54] See Taylor, The Right of Participation in Development Projects, op. cit., p. 225.
[55] Under article 2 of the Convention on Biological Diversity, biodiversity is defined as “the variability among living organisms from all sources including [...] diversity within species, between species and of ecosystems”.
[56] The 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Antipersonnel Mines and on their Destruction, mentioned above (section. 2.2.3), also contains environment-related norms, particularly with regard to environmental standards to be observed for the destruction of antipersonnel mines.
[57] The Draft Covenant was initially elaborated by the World Conservation Union (IUCN) and the International Council of Environmental Law (ICEL) in 1995. A second edition (referred to here) was prepared in 2000. The Draft Covenant has not been adopted by States.
[58] Experts Group on Environmental Law, World Commission on Environment and Development, Environmental Protection and Sustainable Development: Legal Principles and Recommendations, 1986, pp. 58 - 62.
[59] Cf. the WFS Declaration, which recognizes “the right of everyone to have access to safe and nutritious food” (para. 3, emphasis added). The annexed Plan of Action defines food security as follows: “food security exists when all people, at all times, have physical and economic access to sufficient, safe and nutritious food to meet their dietary needs and food preferences for an active and healthy life” (para. 1, emphasis added).

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