The right to nutrition

Summary of unpublished paper

Urban Jonsson, (the UNICEF regional Director for Eastern and Southern Africa) presented a paper on 'The Right to Nutritional Status in Conflict Situations' at the Symposium on Nutrition in the Context of Crisis and Conflict at the 29th ACC/SCN session in Berlin this year. In his presentation Urban sought to draw attention to some of the problems and challenges of promoting the right to nutrition in contemporary conflicts. The presentation drew on case studies in Sudan, Burundi and Afghanistan.

The initial premise of the paper is that there is a common misunderstanding that most human rights law does not apply during conflict situations because it may be derogated (meaning that states may temporarily suspend certain obligations under International Human Rights Law). But human rights law is not so often derogable in conflicts as many assume. In fact the International Covenant on Economic, Social and Cultural Rights (CESCR) and the Convention of the Rights of the Child (CRC) are not derogable at all. "Furthermore, based on the list of non-derogable rights contained in article 4, para 2 of the International Covenant on Civil and Political Rights, the authors assert that states are in no way permitted to suspend or reduce many of their legal obligations to ensure the adequate nutritional status of their citizens during times of emergency conflict. In addition, states have legal obligations for foreign nationals seeking refuge in their territory including facilitating access to adequate food and protection necessary for maintenance of adequate nutritional status."

Various forms of protection are also available to civilian populations in civil or non-international armed conflict. For example, the starvation of civilians as a method of combat is prohibited. There is also strong evidence that some of the provisions in the Additional Protocol to the Geneva Convention of 1949 apply even to States that have not signed them because they have become part of the body of customary international humanitarian law. This means that in the case of (non-international) internal conflict, the protocol applies to non-state warring parties such as liberation movements and rebel groups.

The authors of the paper argue that, given that most humanitarian crises today are also crises of human rights, the obligations of humanitarian agencies to address protection as a fundamental and integral aspect of humanitarian action has to be more systematically addressed. Humanitarian workers increasingly recognise the need to root their work within an ethical framework. There is no one list of humanitarian principles but they are widely seen to include: the humanitarian imperative, neutrality, impartiality, independence, transparency, accountability, do no harm, protect from future vulnerabilities and respect local custom and culture. Various attempts have been made to codify and enforce these principles, e.g. IFRC/NGO code of conduct, OLS ground rules, etc.

Human rights represent relationships between a subject with valid claims (claim holder) and objects with correlative duties and obligations (duty-bearers). International human rights law primarily deals with the obligations of the state. In a human rights approach to programming (HRAP), identification of all key duty bearers in relation to specific human rights, including right to adequate food and nutrition, is required.

Three case studies were used in the presentation to demonstrate ethical dilemmas and resolutions adopted in recent crises.

Situation: In Sudan, malnutrition rates in Bahr el Ghazal (BEG) did not decline after food aid started to pour in during 1998. This was largely recognised to be due to a re-collection and re-distribution of food by local political leaders (chiefs, traders, military, commanders, SPLM and SRRA). This situation persisted so it was difficult for OLS to maintain that its operation in BEG was neutral, impartial or transparent and it was very difficult to be accountable to anyone, e.g. beneficiaries or donors.

Ethical dilemmas: WFP considered two options; to suspend the delivery of food to BEG or to suspend nonlife saving capacity building support to SRRA. The first option would have meant violating humanitarian principles and the second risked the SPLM/SRRA retaliating by expelling OLS from its areas, denying access and preventing OLS from seeking to meet the humanitarian imperative.

Resolution: Option one was rejected primarily as it was considered preferable to accept some partial subjugation of other humanitarian principles to maintain supremacy of humanitarian imperative and option 2 was rejected for fear of losing access.

Situation: In Afghanistan a conflict developed over the use of military assets for the delivery of humanitarian supplies. Many military forces, particularly coalition forces - offered support for obvious political reasons, e.g. there were concerns that UN agencies did not have adequate resources to meet all necessary humanitarian needs. The dilemma therefore was between the humanitarian imperative and the neutrality and impartiality of humanitarian assistance.

Resolution: it was agreed that:

• there was a difference between using planes belonging to those governments actively engaged in the conflict
• there was a difference between using planes inside the country and those outside it
• a balance had to be struck between neutrality and the need to deliver life-saving assistance whenever needed.

Situation: in Burundi in 1998 the Government adopted a policy of forced relocation or regroupment of civilians to restricted camps. Despite international protests the government proceeded with its policy and called on the UN and NGOs to provide food, health care and other humanitarian services to the camps.

Ethical dilemma: There was a conflict between the humanitarian imperative and assisting and legitimising the government in an illegal action that violated the rights of many of its citizens.

Resolution: UN system and NGOs applied maximum pressure on government to change its policies while at the same time providing a minimum amount of humanitarian assistance to maintain an adequate nutritional status. All agencies agreed not to provide any form of assistance that could help sustain the camps on a long-term basis, e.g. trucking water rather than digging bore holes even though this was more expensive.

The main conclusions and recommendations of the paper were as follows:

• Much of international human rights law is applicable in armed conflict situations and should be used.
• Human rights law is not so often derogable in conflicts as many assume. For example, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child are not derogable at all.
• There is a need and a possibility to extend HRL to include duty bearers other than the state parties. This would mean that duty bearers should be identified at all levels of society with specific accountabilities.

Some of the areas identified by the authors for further analysis and action were:

• Achieving consensus on the definition of protection competences.
• Improved and more systematic training in human rights and international humanitarian law and their application for humanitarian workers including nutritionists.
• Improved analysis of claims and duties in relation to the right to nutrition in conflict situations.
• More systematic management of ethical dilemmas. Ideally an agreement among agencies should be reached on how to respond, in a phased manner, to a crisis that increasingly compromises the humanitarian imperative.

Jonsson.U, Levine.I and Young.H (2002). The Right to Nutrition in Conflict Situations. Discussion paper presented at the Symposium on Nutrition in the Context of Crisis and Conflict. Berlin 11-12 March 2002.
For further information contact accscn@who.int