TABLE OF CONTENTS I. INTRODUCTION II. BACKGROUND A. Food Aid for Sudden-Impact Disasters in Context B. Food Aid Requirements in Sudden-Impact Disasters C. Providers of Food Aid in Sudden-Impact Disasters III. REGULATORY PROBLEMS FOR FOOD AID IN SUDDEN-IMPACT DISASTERS A. Supply-Side Problems 1. Tied Aid 2. Food Quality B. Coordination and Professionalism C. Receiving-State Problems 1. Delayed Requests 2. Barriers to the Entry of Food Aid 3. Obstacles to Effective Distribution of Food Aid IV. THE EXISTING INTERNATIONAL REGIME A. Food Aid-Specific Instruments B. The Right to Food C. Disaster Treaties D. Privileges and Immunities E. Recommendations, Resolutions, and Codes V. ONE WAY FORWARD I. INTRODUCTION
A rich and varied literature has grown up around food aid, (1) in particular with regard to its use as a development tool, in response to slow-onset disasters (such as droughts and desertification), and in armed conflicts. Given that these applications make up the bulk of the millions of tons of food aid recorded annually and present some of the thorniest operational issues, perhaps it is not surprising that the regulation of food aid provided in sudden-impact disasters (such as earthquakes, tsunamis, wind storms, and floods) has not been as thoroughly examined.
Still, while the amount of food involved is comparatively small, the lives and dignity of millions of people depend on speedy, effective, and appropriate food assistance in sudden-impact disasters as well. In practice, regulatory problems pose significant obstacles to meeting this need. While there are some relevant international instruments and norms, they have had less impact than might be hoped in addressing the most common operating issues. Moreover, existing international standards on food aid fail to address the particular dynamics of sudden-impact disasters, do not go far enough to link food assistance to other sectors of disaster relief, and ignore the growing role of the non-governmental and private sectors in disaster relief. Since reform is currently in the air in global food aid, (2) this is also the time to address these related issues.
Part II of this Article will provide some background on food aid in sudden-impact disasters as a subset of global food aid and signal some trends in the composition of the aid-providing community. Part III will look to some examples of common legal problems in providing food aid, including not only regulation of the food itself but also indirect barriers to importing and distributing the right food at the right time. Part IV will examine existing international law in light of these common problems. Part V will offer some thoughts on one way forward on these issues.
Food Aid for Sudden-Impact Disasters in Context
In light of the limitations of major data sources for global food aid, it is difficult to draw a clear statistical picture of the food provided in response to sudden-impact disasters in particular. However, it is reasonable to conclude that the amount provided is modest compared to other types of food aid, including emergency aid for armed conflict situations and droughts.
According to the World Food Programme's (WFP) International Food Aid Information System (INTERFAIS), the proportion of global food aid devoted to emergencies, as opposed to economic support and development, (3) increased from thirty-four percent in 1996 to sixty-four percent in 2005, and rose in absolute terms from 2.7 million tons in 1996 to 5.2 million tons in 2005. (4) However, this "emergency" category includes all types of natural and man-made disasters. Of the top nine recipients of emergency food aid in 2005 reported by INTERFAIS, five had experienced a sudden-onset disaster, but together the nine recipients represented only eleven percent of overall emergency aid. (5)
Similarly, according to the Office for the Coordination of Humanitarian Affairs' (OCHA) Financial Tracking Service (FTS), of the $15.7 billion donated for food-sector assistance in humanitarian relief operations from 1999 to 2007, $3.8 billion, or twenty-four percent, were for natural disasters (of both slow- and sudden-onset varieties). (6) Thus, the large majority of donations were devoted to situations of armed conflict, which are considered to be "the most severe emergencies in terms of widespread food insecurity, starvation and excess mortality." (7)
On the other hand, available country-level statistics on sudden-impact disaster relief operations show that food aid can play a substantial role in those operations. For instance, the United Nations' Flash Appeals for the 2007 floods in Bolivia and Mozambique both devoted more than forty percent of the total amount requested to food assistance. (8) Moreover, the absolute numbers of persons requiring food in these types of disasters can sometimes be impressive. For example, after the 2004 Indian Ocean tsunami, WFP provided food to over 2.2 million persons across six countries. (9) After the October 2005 earthquake in Pakistan, 2.3 million persons required food assistance in that one country alone. (10) Thus, while normally eclipsed by the size and complexity of food operations in slow-onset disasters and armed conflicts, sudden-impact disasters can also sometimes reach an epic scale.
Food Aid Requirements in Sudden-Impact Disasters
Still, whereas major slow-onset disasters frequently create food needs, slow-onset disasters only do so sometimes. (11) Floods, windstorms, tsunamis and tidal waves are the most common of the sudden-impact disasters to create food needs, (12) in large part by destroying harvests, foods stocks, animals and seeds. (13) Volcanic eruptions can also result in food needs due to widespread destruction of crops. (14) Earthquakes occasionally cause significant food shortages, as they did in Pakistan in 2005 and Bam, Iran in 2003. (15) This is particularly true when the earthquake destroys food distribution systems and markets. (16) However, this is not commonly the case. (17) For example, notwithstanding the significant devastation of the 2001 earthquake in Gujarat, India, food supplies were not greatly disrupted. (18)
In general, food needs that do result from sudden-impact disasters are urgent but temporary, whereas in slow-impact disasters--such as droughts or locust infestations--food needs develop gradually and tend to be longer-lasting. (19) In the first critical hours and days after a sudden-impact emergency, "[t]here will be insufficient time for extensive or detailed assessment and the organization of large-scale external support." (20) Consequently, "[t]o give any useful benefit, external help must involve delivery of very specific packages of aid to reinforce existing [local] activity." (21) Moreover, different types of food aid--in particular, prepared rather than dry foods--may make more sense in the immediate aftermath of sudden-impact disasters than in the slow-onset context. (22)
However, even when a disaster causes food needs, it does not necessarily follow that international assistance is required. In fact, the overwhelming majority of disasters are addressed entirely by affected communities, domestic authorities, national Red Cross and Red Crescent Societies, and other domestic actors. (23) Thus, for instance, while 790 natural disasters were recorded worldwide in 2006, (24) international assistance was reportedly provided for only 46 of them. (25)
Providers of Food Aid in Sudden-Impact Disasters
Where international relief is required, it might be provided by a variety of actors. According to INTERFAIS, as of 2005, governments provided ninety-five percent of all food aid, and the United States alone provided forty-nine percent of the global total. (26) However, donors channeled that aid in different ways: fifty-four percent was routed through "multilateral channels", twenty-four percent was provided through NGOs, and only twenty-two percent was provided directly by governments of assisting states. (27)
Nearly all of the "multilateral" aid went to just one agency, WFP. (28) However, a majority of that aid was then "sub-contracted" for distribution to NGOs (in addition to the twenty-four percent that they received from governments directly) (29) and, particularly in the emergency context, national Red Cross and Red Crescent Societies. (30) Thus, these non-governmental actors were involved in the distribution of approximately two-thirds of all food aid. (31) Accordingly, although WFP is by far the largest single humanitarian actor in this field, it is certainly not alone.
The foregoing highlights an overall trend of expansion in the size, number, and diversity of actors involved in international disaster relief. More "non-traditional" government donors, (32) more national Red Cross and Red Crescent societies, and more U.N. agencies are becoming involved. The increased participation of the NGO sector has been particularly dramatic. (33) It is estimated that there are currently between 3,000 and 4,000 international NGOs in Western countries, approximately 260 of which are regularly involved in humanitarian relief. (34)
The private sector and the general public are also taking an increasing interest in international relief, particularly in sudden-impact disasters. This interest is manifested not only by large donations to humanitarian actors in highly mediatised situations (during the tsunami operation, private contributions to NGOs and U.N. agencies were reportedly $5.5 billion, exceeding governmental donations for the first time) but also by directly sending aid or travelling to disaster sites in an effort to help. (35)
REGULATORY PROBLEMS FOR FOOD AID IN SUDDEN-IMPACT DISASTERS
Notwithstanding this increasing diversity of food aid channels, recent debates about food aid have mainly focused on legal restrictions by donor states on the type, origin, and delivery methods of the aid they provide. (36) This debate is critical for both...