Open Letter: Nepali Flood victims face violations of their right to food

Dr. Babu Ram Bhattarai
Prime Minister
Singha Durbar
Kathmandu, Nepal

Heidelberg, 17th April 2012

Honourable Mr. Prime Minister:

I am writing to you in the name of FIAN International, the human rights organisation working for the promotion and advocacy of the human right to adequate food. FIAN works in more than 20 countries worldwide through its national sections, coordinations and chapters. Its headquarters are located in Heidelberg, Germany. FIAN also has a permanent representation in Geneva, through which it exercises its consultative status with the Economic Council of the United Nations.

Recently, FIAN received alarming information about the devastating floods by Rivers Pantura and Rangoon, affecting the right to food of the members of 59 households living in Sarguna, Thandajhala and Simalkhet Villages of Ward Number 2 of Jogbuda VDC, Dhadeldura district. According to the information received, the 59 families were forced by the floods to leave the lands of which they were sustaining their livelihoods, as the lands were swept away. They lost approximately 22 hectares of cultivated land, including houses and all other properties. The affected peasants’ families are now trying to survive by working as daily wage agricultural labourers in local villages. The majority have migrated to India for seasonal work for their survival, and are living in very precarious conditions. Especially women and children are deprived from basic education and health services and are facing hunger and malnutrition.

As state party to the International Covenant on Economic, Social and Cultural Rights Nepal is obliged to implement the right to adequate food. According to General Comment No. 12 of the Committee on Economic, Social and Cultural Rights, Paragraph 6: “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. …States have a core obligation to take the necessary action to mitigate and alleviate hunger as provided for in paragraph 2 of article 11, even in times of natural or other disasters.”

According to this General Comment, the right to food implies the state obligation to fulfill the right to adequate food. Under this obligation states have to adopt measures to facilitate that people feed themselves, ensure their access to productive resources,  and if they are not able to do so, provide them with food.

According to Paragraph 13 of the General Comment,  “Victims of natural disasters, people living in disaster-prone areas and other specially disadvantaged groups may need special attention and sometimes priority consideration with respect to accessibility of food.”

Paragraph 15 establishes that: “The right to adequate food, like any other human right, imposes three types or levels of obligations on States parties: the obligations to respect, to protect and to fulfil. … the obligation to fulfil incorporates both an obligation to facilitate and an obligation to provide…. The obligation to fulfil (facilitate) means the State must pro-actively engage in activities intended to strengthen people’s access to and utilization of resources and means to ensure their livelihood, including food security. Finally, 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, States have the obligation to fulfil (provide) that right directly. This obligation also applies for persons who are victims of natural or other disasters.”

Furthermore, according to the Voluntary Guidelines on the Right to Adequate Food in the Context of National Food Security, adopted by the FAO (Guideline No. 16.7.), “States should put in place adequate and functioning mechanisms of early warning to prevent or mitigate the effects of natural or human-made disasters. Early warning systems should be based on international standards and cooperation, on reliable, disaggregated data and should be constantly monitored. States should take appropriate emergency preparedness measures, such as keeping food stocks for the acquisition of food, and take steps to put in place adequate systems for distribution.”

According to the human rights standards on the right to adequate food, in case of natural disasters, under the obligation to fulfil, if people lose their access to resources which are necessary to feed themselves, States are obliged in the short term to provide food to the victims of the catastrophe. In this sense the Voluntary Guidelines on the Right to Food (Guideline No. 16.6.) establish: “In the case of natural or human-made disasters, States should provide food assistance to those in need, may request international assistance if their own resources do not suffice, and should facilitate safe and unimpeded access for international assistance in accordance with international law and universally recognized humanitarian principles, bearing in mind local circumstances, dietary traditions and cultures.”

In addition, a systematic interpretation of the right to adequate food, especially on the obligation to fulfil, which is in line with the principles of human dignity and food sovereignty and consider the legal content elements of sustainable access and cultural adequacy, implies that after providing food to disaster victims, in the short, mid and long term, states shall adopt all necessary measures to ensure that people have access to resources which allow them to feed themselves in dignity. These kinds of measures can include for example the resettlement on productive lands, subsidies for food production, provision of access to traditional seeds, inter alia. All these measures shall be in line with the human rights principles of transparency, participation, non discrimination, indivisibility and the rule of law.

In this specifically analysed case, in line with the obligation to fulfil the right to food, and according to information received, food was distributed to the families as a short term measure. Additionally, the Government of Nepal decided on April 16, 2009 (2066, Baikash-3) to  resettle the 59 families at a safe place. As per the decision each family was entitled to receive 2 kattha (approximately 260.38 square meters) of land for housing purposes and 50,000 Nepali rupees for house construction. In line with its international commitments, the Government ordered the Ministry of Physical Planning and Works to implement the decision. As a consequence, a District Implementation Committee has been formed in Kailali District to execute the government’s decision.

Nevertheless even though means were available to implement this decision, which would ensure the realization of the right to food of these families, the Committee did not implement the decision within the given fiscal year 2009/2010. This assumed negligence led to the impossibility to apply the budget allocated in fiscal year 2009/2010 for the implementation of the decision. Moreover, FIAN was informed that  the relief items distributed to the affected families during the flood period are neither sufficient nor are they distributed to all affected families, who, as a consequence, are facing hunger and malnutrition.

FIAN is concerned because, even though some of the adopted decisions were in line with the international right to food obligations of the State of Nepal, both the non implementation of the resettlement and the insufficiency of the food aid provided configure a breach of the Nepal state obligation to fulfil the right to adequate food of the families. Nevertheless, FIAN welcomes the fact that during a visit of a delegation of the flood victims to your office on April 6, 2012, the Government has committed to initiate the resettlement work immediately within this fiscal year.

Taking in account that Nepal is as a state party to the International Covenant on Economic, Social and Cultural Rights, obliged to respect, protect and fulfil the right to food, FIAN requests you, as the head of the Government to:

” Act according to your commitment of April 6, 2012 and immediately initiate the implementation of  the Government’s decision of April 16, 2009 for resettlement of the 59 families in Ward 2 of Jogbuda VDC; and adopt any other necessary measure to ensure that the families can recover their livelihoods in dignity;

” Establish a participative monitoring mechanism of the implementation of the resettlement and any other decision aiming to realize the right to food of the mentioned 59 families. This mechanism should enable the responsible authorities to identify any irregularity in the implementation of the measures and to adopt any necessary corrective measures to ensure the realization of the right to adequate food of the families;

” To adopt all necessary preventive measures to avoid that these and other families in similar situations lose their access to food due to further natural disasters.

I will greatly appreciate to be kept informed of the action you plan to take in this regard.

Yours sincerely,

Dr. Flavio Valente
Secretary General
FIAN International

cc:

Mr. Hridayesh Tripathi, Minister, Ministry of Physical Planning and Construction;

Mr. Tulasi Prasad Sitaula, Secretary, Ministry of Physical Planning and Construction;

Mr. Barsha Man Pun, Minister, Ministry of Finance

UN Special Rapporteur on the right to food, Mr. Olivier de Schutter