Australia | Publication | September 2024
This article was co-authored by Grace Cameron
The human right to food is becoming increasingly relevant as climate change and biodiversity losses increase pressure on food supply, and issues of food insecurity become more prevalent.
In this article we explore the development of the human right to food under international law, and how climate change and biodiversity loss contribute to existing issues around global food insecurity, including the implications for First Nations peoples. We will also discuss the role of the private sector in protecting and improving secure access to healthy and nourishing food and how pro bono legal services can assist.
Human rights create universal legal standards that are designed to give effect to human dignity, particularly through providing an obligation on States to fulfil access to basic needs.
The codification of human rights under international law began in the aftermath of WWII, with the rights related to food and health serving to prevent deprivations like those that like that had taken place during the Great Depression, and the war that followed. Article 25 of the Universal Declaration of Human Rights 1948 (UDHR) states:
Building on this, in 1966 the UN General Assembly adopted both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Australia ratified these treaties in 1980 and 1975, respectively, and thus became bound by their terms in the eyes of international law. 1 Together with the UDHR, these instruments are the foundation from which the modern human rights system has since grown and developed, including the human right to food.
The ICESCR recognises the fundamental right to be free from hunger, and the right to the highest attainable standard of physical and mental health. It also imposes a correlative obligation on state parties to pursue the progressive realization of the right to adequate food.2 Importantly, the ICESCR highlights the importance of international cooperation in realising these rights and obligations, through the development of food science, and the equitable distribution of food globally.3
The right to food contained in Art. 11 of ICESCR has two facets: it requires States to ensure that individuals have both physical and economic access to food.4 This access must be sustainable, a requirement that is “intrinsically linked to the notion of […] food security, implying food being accessible for both present and future generations.”5 The right to food established by ICESCR therefore goes beyond mere access to food, understood in a restrictive sense. It requires States to ensure that systems are created to ensure the fulfilment of this right for present and future generations – a requirement that holds particular valence in a world facing the effects of climate change.
In the decades since these foundational treaties came into force, the United Nations has continued to advance efforts to address hunger and malnutrition as a harm to public health. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) recognises that problems of poverty and food insecurity tend to affect women at a disproportionate rate. It also requires States to specifically ensure that women are able to access “adequate nutrition during pregnancy and lactation”.6
In a similar fashion, the Convention on the Rights of the Child (CRC) outlines the rights of all children, and requires states to take measures to combat malnutrition, to provide adequate food, and material assistance to parents in order to secure nutrition for their children.7
Additionally, the 17 UN Sustainable Development Goals (SDGs) have zero hunger by 2030, as the second stated goal (SDG #2). This encompasses ending hunger and malnutrition, achieving food security and improved nutrition (especially for pregnant women and children under five), and promoting sustainable agriculture.8Many of the SDGs are intertwined with issues around global food insecurity, such as the global commitment to ending poverty (SDG #1), securing good health and well-being (SDG #3), clean water and sanitation (SDG #6), urgent action to combat climate change and its impacts (SDG #13), life below water (SDG#14) and life on land (SDG#15) which aims to protect, restore and promote sustainable use of terrestrial ecosystems and halt biodiversity loss (SDG#15).
Progress on eradicating world hunger and reducing food insecurity is a story of international cooperation. Since 2000, the number of undernourished people globally has reduced by nearly half and there has been a steep fall in countries with extremely alarming and alarming levels of hunger.9 However, progress has been stalling since 2015, further worsening since the COVID-19 pandemic.10 Climate change and biodiversity loss threatens to reverse the hard-won progress of the global community in combatting food insecurity, hunger, and malnutrition.
Climate change has and will continue to increase the frequency and severity of extreme weather events, including droughts, bushfires, heatwaves, floods, and cyclones. These events destroy habitat and crops, decreasing food availability and putting pressure on food prices, impacting communities with already-precarious access to food security.11 Overall, as put by the advocacy group Farmers for Climate Action, “climate change acts as a threat multiplier […], exacerbating existing threats” to food production systems, such as deforestation, economic and regional inequality, and pollution.
Outside of these extreme events, changes in seasonal and yearly weather patterns caused by climate change are likely to have a disastrous impact on food production, through habitat loss and fragmentation and flow-on effects to biodiversity, the inability of traditional crops and livestock to survive changed weather patterns, and climate-induced changes to phenology.12 Phenology describes the biological events in species’ life cycles, like flowering and reproduction. Changes in phenology impact how species interact, and the predictability of food cycles for human food security.
Alongside changes that are likely to result in lower food availability and security, the nutritional value of food is itself expected to worsen, due to the increased atmospheric concentration of carbon dioxide.13 Given key metrics in measuring food security are rates of nourishment and food quality, in addition to the quantity of available food, this has concerning implications for human health. For example, iron levels are predicted to fall in key agricultural crops, threatening the fight against anaemia, which is a key focus of SDG #2.14
Our oceans are also particularly vulnerable to climate change, and the risk of their deterioration cannot be understated. Oceans are the primary source of protein for more than three billion people around the world, particularly those living on coasts and rivers.15 In the oceans, we clearly see the effects of convergence between climate-change, and other environmentally harmful practices. For example, the rise in ocean temperatures has contributed to more severe meteorological conditions, which places fishing communities in danger, while fish populations can be obliterated by non-natural environmental disasters.
Concurrently with, and partly-consequent to the growing impacts of climate change, the world is also facing a catastrophic biodiversity collapse with significant implications for the world’s food systems.
Researchers have found a 70% average decline across tens of thousands of different species globally since 1970.16 The greatest decline is generally seen in developing countries, with already-vulnerable food systems. For example, in 2009 it was projected that crop production would decline by 5% in higher income countries, and by 8% in lower income countries in the absence of pollinators.17 By 2022, global production of fruits, nuts, and vegetables had already declined by 5% due to inadequate pollination.18 This is a clear example of how biodiversity loss exacerbates inequality in relation to food security, including dependence on imported foods. However, whilst the largest declines are typically in developing nations, Australia’s unique and fragile biodiversity means that it too, is facing significant decline to its biodiversity, including the largest loss of species of any nation.19
Climate change impacts and biodiversity losses pose specific risks for First Nations peoples in Australia and globally in the context of the human right to food.
In Australia, changes in sea levels and temperature, the loss of marine and terrestrial biodiversity, and an increase of feral animals, are placing stress on traditional methods of hunting and food production for Aboriginal and Torres Strait Island peoples. This not only endangers the right to food and health for these communities, but also threatens the loss of important cultural heritage and traditional knowledge.
For remote communities, severe weather wrought by climate change (for example, longer wet seasons, and droughts) raises the price of food due to crop failures and increased stock feed costs, and supply chain interruptions, creating issues around availability of staple foods.
In Australia First Nations people have begun to take legal action on the basis of harm to human rights brought about by climate change.20 Whilst the cases do not specifically allege a breach of the human right to food, these cases show that new pathways are opening for Indigenous communities – who are often on the frontline of the climate crisis – to defend their human rights. It is not difficult to extrapolate that the issues raised could be extended to include an alleged breach of the human right to food. We expect to see such arguments being advanced in subsequent cases.
Since the 2021 UN Food Systems Summit, the United Nations and associated NGOs have focussed on developing new systems of providing food for the global community, as part of achieving the SDGs and creating sustainable food systems. It is vital that the commerce engages with this process. First, investments must be directed towards sustainable projects and activities; and second, the private sector must promote and invest in innovation to combat the issues of climate change, biodiversity loss and pollution.
Specifically, the private sector does this by:
In addition, the green loan/bond and sustainability linked loan/bond markets support financing for impact investment as a tool to address climate change as they can be used to fund diverse sectors such as renewable energy.
However, whilst there is increased green and sustainable assets under management, there is a lag in the way projects are reviewed and approved, particularly in respect of unproven technologies and innovation. Policy changes are therefore needed to unlock the ‘red-tape’ and the regulation needed should facilitate rather than block these projects.
The optimal functioning of green and sustainable finance markets requires clear regulations and certifications. Taxonomies are an important part of this ‘unlocking’. For example, the EU taxonomy is a cornerstone of the EU’s sustainable finance framework and an important market transparency tool. It helps direct investments to the economic activities most needed for the transition, in line with the European Green Deal objectives.
A further plank of the European Green Deal, passed by the European Council in June 2024, is the Nature Restoration Law, which will potentially encourage renewed private sector investment in nature restoration. By the end of the decade, European member states will each be required to restore 30% of terrestrial and marine habitats, a requirement which rises to 90% by 2050. Importantly for food security, European member states will now also be required to regenerate biodiversity on farmland, and protect pollinator species. Food security in the context of climate change was cited by a number of European officials as being a key rationale for the law.
The intersection between pro bono legal work and ESG more broadly is obvious. The consequences of climate change and biodiversity loss are likely to lead to ongoing demand for legal services, particularly in the pro bono sector. Pro bono legal services can tackle these issues of food insecurity and promote sustainable practices in several ways:
At Norton Rose Fulbright, we have a specific pro bono strategy. We focus on providing legal support to projects which benefit the environment and biodiversity,) or increase the sustainable use of resources and protect international human rights. Overlaying this is our focus on pro bono work that benefits First Nations communities; strategic litigation which seeks to deliver wide-reaching positive social change; law reform and policy work, designed to bring about systemic change; and technologies and innovation to maximise access to justice - all of which touches on the issues created by food insecurity and the importance of the human right to food. You can read more about our pro bono practice here.
Australia signed the ICCPR in 1972 and ratified in 1980, and signed ICESCR in 1972 and ratified in 1975.
ICESCR, Art. 11.
Ibid, [7].
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (“CRC”), Articles 24(c) and 27.
“The 17 Goals” Sustainable Development Goals, United Nations, available here.
Klaus von Grebmer, Jill Bernstein, Miriam Wiemers, Laura Reiner, Marilena Bachmeier, Asja Hanano, Réiseal Ní Chéilleachair, Connell Foley, Tim Sheehan, Seth Gitter, Grace Larocque, and Heidi Fritschel, 2023 Global Hunger Index (Welt Hunger Hilfe and Concern Worldwide, October 2023).
Intergovernmental Panel on Climate Change (IPCC), IPCC Sixth Assessment Report (2022).
Hannah Ritchie, ‘Living Planet Index’ Our World in Data (13 October 2022), available here.
Publication
Miranda Cole, Julien Haverals and Emma Clarke of our Brussels/ London offices are the authors of a chapter on procedural issues in merger control that has been published in the third edition of the Global Competition Review’s The Guide to Life Sciences. This covers a number of significant procedural developments that have affected merger review of life sciences transactions.
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