The Food Assistance Convention 2012: a mouse that roars or a lion that squeaks?

In a previous post in March 2011 I discussed the background to the renegotiation of the Food Aid Convention 1999 (FAC 1999). In late April 2012, after a long-running and contentious series of negotiations by the major donor countries who were signatories to the FAC 1999, the text of the eagerly awaited Food Assistance Convention 2012 (FAC 2012) was published. The new FAC 2012 will remain open for signature until 31st December 2012, and will enter into force on 1st January 2013 if at least five of the signatories to the previous FAC 1999 have ratified the new convention.

First concluded in 1967, the Food Aid Convention 1999 was the only international legal instrument covering the provision of food aid to developing countries, and signatories were restricted to a small selection of donor countries: Argentina, Australia, Canada, the European Union, Japan, Norway, Switzerland and the United States. Implementation of the Convention was overseen by a Food Aid Committee, based in the International Grains Council in London. Yet serious concerns were raised regarding the operational and governance structures of the Food Aid Convention. Critics highlighted the out-dated model of physical food transfers from donor countries to recipient countries and a lack of utilisation of new methods of ensuring food security, such as cash transfers and increased use of micro-nutrient enriched foods and special nutritional products.

So in my previous post I highlighted the need to move from a Food Aid Convention to a Food Assistance Convention. As this has now come to pass, does this signify a major shift in donor country thinking on the provision of food and nutritional support to vulnerable communities? And does the rebranding of the Food Aid Convention 1999 into the Food Assistance Convention 2012 indicate that the needs-based approach supported by the EU and Canada has trumped the resource-based approach favoured by the USA and Japan?

In March 2011 I noted there was a need to move from discussion of what food stuffs to provide people facing food scarcity and famine, to what overall package of assistance is required to meet the needs of affected populations. I highlighted a series of issues that were up for discussion in the negotiation process, including whether additional donor members should be allowed to become signatories to the Convention, the form that food aid should take, and where a Food Aid/ Assistance Convention should fit within the overall international response to food scarcity and insecurity. So how have these, and other structural and contextual issues, been resolved in the new Convention?

Forms of food assistance: the change from “food aid” to “food assistance” represents an important shift in attitude from the original trade origins of the FAC in 1967, to acknowledging best practice in delivering food and nutritional assistance to vulnerable populations through cash transfers, local and regional procurement of food stuffs, and innovative approaches to reducing food and nutritional insecurity at the household and community level. The new Convention also includes explicit recognition that food assistance should be untied from donor countries own agricultural and trade objectives, and that in-kind food transfers from donors can distort the local markets and therefore have negative impacts on the overall levels of food security in a region. However, the subordination of FAC 2012 to obligations under the WTO still places a country’s trade considerations well before humanitarian responses.

Amounts of food assistance: the FAC 1999 contained detailed provisions on the amounts of food aid that were to be provided by each signatory, recorded in tons of grain which implied the physical transfer of food stuffs from donor countries to recipients. The FAC 2012 has a discretionary, non-binding system, whereby signatories announce an annual minimum commitment of food assistance expressed either as a minimum value or a minimum quantity of food stuffs. Donor countries simply have to provide details of their annual minimum commitments by 15th December each year, and it is now up to each donor country to determine its level of commitment each year. This represents a major weakening of the binding commitments contained in FAC 1999. Furthermore, as seen during the 2007-8 food price spike and the famine in the Horn of Africa during 2011 and 2012, the availability of food aid is often dependent on global food prices – and the total amount of donor countries’ commitments can fall when global prices increase. So allowing countries to express their commitment in monetary value passes the risk of price fluctuations onto the recipient countries, when previously donor countries bore this risk. Nevertheless, as noted by a former Director of the World Food Programme for the Asia and Pacific:

 “The FAC always seemed to me an accounting device more than a guarantee for an additional volume of resources in times of crisis. All donors, but certainly the major ones always provided food when they had it and did not provide food when they did not have it.”

Signatories: While initial signatories to FAC 2012 remains limited to the original signatories of FAC 1999 (plus those States that have joined the EU since 1999), Article 13 allows for any other State to accede to the Convention once it has entered into force. This is to be welcomed if it leads to an expansion of the base of key middle income donor countries such as Brazil, China India, Russia or South Africa, who had not been included in the formal renegotiation process. Not only would this help widen the base of donor countries, it can assist in committing a broader range of countries to the principles of effectiveness and accountability promoted in the new text.

Governance and inter-agency co-ordination: the new text explicitly requires donor countries to regularly monitor, evaluate and communicate the outcomes of their food assistance programmes. This reflects the increasing emphasis placed by donors themselves on transparency and accountability in development and humanitarian programming, as set out in the OECD’s Paris Declaration on Aid Effectiveness 2005 and Accra Agenda for Action 2008. Such openness is to be welcomed, as are the indications that the Food Assistance Committee will act in a more inclusive and transparent manner, for example by including recipient countries and civil society organisations in their discussions and meetings. It would be hard for donor countries to press recipient countries to act in an open, transparent and accountable manner, and to promote these principles as a basis for aid effectiveness, without acting in the same manner themselves. However, it remains to be seen what level of engagement and input is actively sought by the new Food Assistance Committee from middle income donors, recipient countries and non-governmental organisations. Therefore organisations within donor countries will need to monitor the stances taken by the national authorities, for example Irish Aid and the Department of Agriculture here in Ireland, to promote compliance with the new commitments. Furthermore, as noted by the International Federation of Red Cross and Red Crescent Societies, it is not clear how the FAC 2012 will interact with existing food security structures, for example the UN High-Level Task Force on the Global Food Security Crisis, the Committee on World Food Security and the global Food Security Cluster.

Considering that the FAC 2012 is a legal framework for the provision of humanitarian food assistance to populations facing major food insecurity, it is notable how many aspects of the FAC 1999 have been improved. Overall, the FAC 2012 has created a more supportive structure for promoting best practice in food and nutritional interventions by donor countries. While the Overseas Development Institute has questioned whether the new convention will lead to any changes in the attitude of large donors, such as the USA, this has been countered by Professor Jennifer Clapp and C. Stuart Clark, who argue that the FAC 2012 plays a fundamental role for middle sized donor countries, such as Canada, Switzerland and Norway. Perhaps of most interest is the clear acknowledgement of the right to food set out in the preamble to the new Convention. By bringing the operation and governance of the Food Assistance Convention 2012 into the public sphere and by clearly recognising the right to food, donor countries have signalled that they wish to take their humanitarian commitments seriously. It is now incumbent upon the rest of us to build on the re-commitment of donor countries to ensuring sufficient assistance is provided to those facing severe food and nutritional insecurity. This requires the signature and accession of the FAC 2012 by as wide a range of countries as possible, and for us to hold donor countries to their word.

Human Dignity as a Focus for Criminal Justice and Human Rights: Report on 6th Annual Postgraduate Conference, April 2012

The Centre for Criminal Justice and Human Rights’ 6th Annual Postgraduate Conference was held on 26th April 2012 in Áras na Laoi, UCC on the theme of “Transformation and Reform: Structures and Mechanisms for Rights-Based Protections”. The aim was to critically examine the implications for individuals and rights-based protections that arise from recent proposals for major reforms at the national, European and international level. This was reflected in the variety and high quality of papers presented on a wide range of topics including Scottish and Irish Criminal Processes, Gender and Sexual Offences, Racism and Hate Speech, Irish Legal Processes, International Criminal Law, and International Humanitarian Law.

Professor Christopher McCrudden of Queen’s University Belfast delivered the keynote address examining An Integrated Approach to International Human Rights through the Concept of Human Dignity. Professor McCrudden traced the origins of the concept of human dignity, and noted the implications for both methodological approaches to researching and substantive enforcement of human rights that arise from a renewed focus on human dignity within international human rights law.

 

A video of the event can be seen here

The conference attracted a total of 66 attendees with speakers from across the island of Ireland and the UK, including from UCC, TCD, UCD, the Irish Council for Civil Liberties, University of Ulster, King’s College London, University of Strathclyde, NUIG, the Law Reform Commission, Griffith College Dublin, University of Nottingham, University of Aberdeen, University of Bedfordshire, Queen’s University Belfast, Queen Mary, University of London as well as legal and non-governmental practitioners.

A number of innovations were made to the conference programme this year including the introduction of a competition for best paper. The competition was won by Sarah Singer of Queen Mary, University of London. Sarah presented her paper titled “Exclusion from Refugee Status: Asylum Seekers & Terrorism in the UK” at a plenary session of the conference. The paper was very well received and provided a valuable opportunity to highlight the excellent standard of postgraduate research which the CCJHR seeks to promote.

The conference concluded with a panel discussion on the topic of Transformation and Reform. This was also a new addition to the CCJHR conference programme and allowed for reflection and discussion on the disparate issues raised in the plenary sessions and parallel workshops during the day.

We would like to take this opportunity to thank everyone who attended and presented at the conference, in particular Professor McCrudden and Sarah Singer, and for the excellent support from UCC Faculty staff on the day. Pictures from the conference and a podcast of the keynote speech by Professor McCrudden will be available shortly on the CCJHR website.

Climate Justice and the Durban Platform for Enhanced Action

Mary Robinson, President of the Mary Robinson Foundation – Climate Justice (MRFCJ), delivered a public lecture at UCC’s Centre for Global Development titled ‘Climate Justice Post Durban’ on 18 January 2012. Mrs. Robinson explored the outcomes of the most recent UN climate change conference, COP17, which took place in Durban, South Africa, in December 2011, from a climate justice perspective and the extent to which it addressed the needs of those most vulnerable to the impacts of climate change.

COP17, she said was concerned with “what I believe to be the most critical issue we all face – the future of our planet. In these times of economic crisis, amid worries about our own and the European and international economies, it is not surprising that attention focuses on our immediate problems. But, make no mistake about it, we ignore the threat posed by climate change at our peril.”

Mrs Robinson explained the three priorities for the MRFCJ at COP17; the legal form of a future climate agreement; food security and agriculture; and women’s leadership and the gender dimensions of climate change.

Speaking about the outcome of COP17, known as the Durban Platform for Enhanced Action, Mrs Robinson said: “The door is open for a new international and inclusive legally binding agreement to solve the climate change problem. We have a start date, January 2012, a deadline December 2015, and a lot of work to do, barriers to breakdown and agreement to reach before then.

“Central to this will be overcoming the divide between developed and developing countries in the climate negotiations. The alliance formed between the EU, the Least Developed Countries and the Small Island Developing States at COP17 started to challenge this divide. It is a move in the right direction that will need to be nurtured and strengthened in the coming years to facilitate an ambitious new agreement.”

She continued: “We made progress on issues of importance to climate justice including gender equality and food security. Both of these reflect the Principles of Climate Justice which underpin the work of MRFCJ and help to communicate the human impacts of climate change and demonstrate the need for solutions which are informed by human rights.”

“This work is far from complete and we will continue to work on these themes inside and outside the Climate Change Convention as core elements of our work on climate justice.”

The lecture was part of the UCC Centre for Global Development’s Global Challenges Lecture Series.

See also:

Full text of lecture

Climate issues crucial, says Robinson – Irish Times, 19th January 2012

The Denial of Humanitarian Assistance: The case of Syria

The International Committee of the Red Cross (ICRC) has now entered the sixth day of negotiations with the Syrian authorities over allowing access for humanitarian assistance to the neighbourhood of Baba Amr in Homs. The Syrian authorities have cited security concerns for the denial of access to the ICRC and the Syrian Red Crescent, claiming that the neighbourhood is booby trapped and landmined. Yet the UN Secretary General, Ban Ki-Moon, has stated that he has received “grisly reports” of summary executions and torture by Syrian troops, and it is alleged that the delay in allowing access is so that Syrian forces can hide evidence of such killings. Meanwhile, the Irish authorities have pledged €500,000 in humanitarian assistance toSyria, with Tánaiste and Minister for Foreign Affairs Eamon Gilmore, highlighting the importance of immediate and unhindered access for all humanitarian agencies, and the danger of any militarisation of humanitarian assistance.

The Right to Humanitarian Assistance under IHL

Humanitarian access, particularly in the midst of an armed conflict, has long been a contentious issue. Nevertheless, while the extent of a binding international legal right to humanitarian assistance remains contested, Geneva Convention IV relative to the Protection of Civilian Persons in Time of War does provide certain rights to humanitarian assistance for civilian populations during armed conflicts. For example, Article 23 provides that the entire population in a conflict zone is entitled to receive medical supplies and objects necessary for religious worship; while particularly vulnerable groups such as children under fifteen, expectant mothers and maternity cases are additionally entitled to essential foodstuffs, clothing and tonics. The forms of assistance allowable in international armed conflicts were expanded via Article 70 of Additional Protocol I in 1977 to include clothing, bedding, shelter and other supplies necessary for the survival of the civilian population, plus objects necessary for religious worship.

While ICRC acknowledges that military considerations are part and parcel of decisions surrounding the provision of humanitarian assistance to civilians in conflict zones, GV IV also stipulates that civilian populations are entitled to a minimum level of protection against some of the consequences of war, with key protections in place for hospitals and “neutralised zones”. Particularly vulnerable groups such as the sick and wounded or the elderly should also receive explicit protection.

Furthermore, Article 70 API utilises non-discretionary language: “If the civilian population … is not adequately provided …, relief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken” (emphasis added). Nevertheless, despite this mandatory language, Article 70 then introduces certain limitations on the provision of this humanitarian assistance. First and foremost, the provision that humanitarian assistance must be “subject to the agreement of the Parties concerned”. Additionally, the Parties have the right to prescribe technical arrangements, including search procedures, under which the passage of humanitarian supplies are permitted. Meanwhile, although Article 71 API provides that humanitarian personnel shall be respected and protected in the discharge of their functions, it also stresses that “[u]nder no circumstances may relief personnel exceed the terms of their mission … In particular they shall take account of the security requirements of the Party in whose territory they are carrying out their duties”.

These provisions reflect the recognition throughout IHL that while parties to a conflict have explicit responsibilities towards civilians under their control, individual rights may be legitimately constrained, either for military necessity, security reasons or due to insufficient resources.

Considering that the Syrian authorities have argued security concerns for the denial of access for the ICRC and Syrian Red Crescent, at face value this might imply that they are justified in their current stance. Indeed, internal armed conflicts present further difficulties for humanitarian access. Additional Protocol II does not contain the same level of detail regarding relief activities for civilian populations, and Article 18(1) APII provides only a right for humanitarian agencies such as the Red Cross to offer their services for the victims of internal armed conflicts. By implication, such an offer may be refused by a Party to the conflict. Yet, Article 18(2) once again uses mandatory language in proscribing that “[i]f the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival … relief actions for the civilian population … shall be undertaken”.

Furthermore, the provisions of humane treatment set out in Common Article 3 apply in all internal armed conflicts, and the ICRC has determined that the provision of humanitarian assistance to civilian populations is part of customary international law. Under Customary International Law Rule 55, the parties to a conflict must allow and facilitate the rapid and unimpeded passage of humanitarian relief for civilians in need, while Rule 56 states that Parties to a conflict must ensure the freedom of movement of authorised humanitarian personnel. Crucially, only in case of imperative military necessity may their movements be temporarily restricted.

The Denial of Humanitarian Assistance as an International Crime

During the negotiations for the establishment of the International Criminal Court (ICC), Sergio Vieira de Mello submitted a communication to the Diplomatic Conference on behalf of the UN Inter-Agency Standing Committee which argued that the wilful denial of humanitarian assistance committed in both international and internal armed conflicts, should be included in the jurisdiction of the Court. While the Rome Statute did not create a specific crime of the denial of humanitarian assistance, the non-provision of humanitarian assistance could be classified as a crime against humanity. As per Article 7 of the Rome Statute, a crime against humanity includes acts committed as part of a widespread or systematic attack against any civilian population that results in murder, extermination, persecution, or other inhumane acts causing great suffering or serious injury to body or to mental or physical health. Indeed, the ICC has noted that “extermination” covers inflicting conditions that destroy life and has specifically highlighted the deprivation of access to food and medicine in this context. Furthermore, Additional Protocols I and II prohibit the deliberate starvation of civilians as a method of warfare, and the ICRC Customary International Law Study has concluded that this prohibition is also part of customary international law in both international and non-international armed conflicts.

So if it is part of a widespread or systematic policy which is considered an attack on a civilian population, the deliberate denial of humanitarian assistance and resultant suffering and potential deaths may amount to a crime against humanity. It is therefore possible for prosecutions under international criminal law to be initiated if evidence comes to light that a deliberate policy of denial of humanitarian assistance has taken place in breach of Syria’s international obligations. Individuals who planned and implemented policies that resulted in the denial of humanitarian assistance could therefore face either national or international criminal charges. The consequential threat of punishment for actions that result in denial of assistance may help ensure not just the mobilisation of national resources for the affected populations, but facilitate access by international agencies to those in need.

On this basis, it would seem that the criminalisation of actions that lead to the wilful denial of humanitarian assistance can provide a key tool in negotiations on humanitarian access in situations of armed conflict. However, Médecins Sans Frontières has noted that:

“… it is the threat of punishment, rather than punishment itself, that might potentially have a deterrent effect. Once the latter has been handed down, the criminal has nothing left to lose. Within a week of the ICC’s arrest warrant for the Sudanese head of state [President Omar al-Bashir], the Khartoum government committed a new series of war crimes, ranging from blocking humanitarian aid to kidnapping humanitarian workers, including the looting and use by Sudanese security forces of MSF’s vehicles, communications devices, and personal identification. So while the threat of charges could act as an incentive in negotiations between the international community and the Sudanese government, the announcement of charges against the Sudanese president drove him into a corner … As far as relying on the fear of international criminal charges to protect humanitarian relief efforts is concerned, we can only stress that it is a risky bet.”

If this is the case, then the ICC should be cautious in bringing charges against Syrian officials at this stage when the conflict is ongoing, but rather should be actively pursuing credible allegations of crimes within the Rome Statute for potential prosecutions in the future. Meanwhile, in the absence of a unified approach from the UN Security Council, the international community must increase the diplomatic and political pressure on the Syrian authorities to respect their international commitments to provide and facilitate humanitarian assistance to all civilian populations.

Call for Papers: 6th Annual CCJHR Postgraduate Conference, 26th April 2012

The Centre for Criminal Justice and Human Rights (CCHJR) at University College Cork is pleased to announce that the 6th Annual Postgraduate Conference will take place on Thursday, 26th April 2012. The conference is aimed at postgraduate researchers working in the areas of criminal law, criminal justice and human rights.

The theme for this year’s event is “Transformation and Reform: Structures and Mechanisms for Rights-Based Protections”. The aim is to examine the implications for individuals and rights-based protections that arise from recent proposals for major reforms at the national, European and international level, including proposals for changes to the Irish legal profession and potential constitutional amendments, reforms of the treaties and structures of the European Union, and the UN Treaty Body Reform process. This theme is intended to encourage debate and reflection on the challenging question of ensuring the protection of fundamental rights during periods of change and crisis.

This international one-day event is aimed at promising research scholars from Ireland, the UK and Europe in the areas of law, politics, philosophy and the related social sciences. We are especially interested in papers that relate to human rights, criminal justice, criminal law or the intersection of these fields from a national, European or international perspective. We will also welcome papers dealing with issues that fall within the broad theme of the conference.

The keynote address will be delivered by Professor Christopher McCrudden of Queen’s University Belfast. Professor McCrudden is currently working on an integrated theory of comparative human rights law, and is an expert on equality and discrimination, as well as the relationship between international economic law and human rights.

Papers will be streamed thematically. The two best papers, as selected by the conference organisers, will present their paper to the plenary session of the conference.

Abstracts for papers (max. 300 words) should be submitted to the conference organisers by 20th February 2012. Successful conference submissions will be notified by 20th March 2012. To be considered for the best paper and the opportunity to present to the plenary session, full papers should then be submitted by 16th April 2012. Submissions and further enquires should be directed to ucclawconf@gmail.com.

For further information and registration details please visit: www.ucc.ie/en/ccjhr

Please note: a CPD Certificate of Attendance will be available for this conference.

Save the Date: CCJHR 6th Annual Postgraduate Conference, 26th April 2012

The Centre for Criminal Justice and Human Rights (CCHJR) is pleased to announce that the 6th Annual Postgraduate Conference will take place in UCC on Thursday, 26th April 2012. The conference is aimed at postgraduate researchers working in the areas of criminal law, criminal justice and human rights.

Reflecting proposals for major reforms that will directly affect key national, European and international concerns, such as proposals for changes to the Irish legal profession and constitutional amendments, and the UN Treaty Body Reform process, the theme for this year’s event is “Transformation and Reform: Structures and Mechanisms for Rights-Based Protections”. This international one-day event is aimed at promising research scholars from Ireland, the UK and Europe in the areas of law, politics, philosophy and the related social sciences. Further details on the conference and a Call for Papers will be issued in early January 2012. For more information on the CCJHR, please visit: www.ucc.ie/en/ccjhr