ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
ACCOUNTABILITY for THE HUMAN RIGHTS IMPLICATIONS OF natural DISASTERS: A PROPOSAL FOR SYSTEMIC INTERNATIONAL OVERSIGHT[1]
DUG CUBIE[2] & MARLIES HESSELMAN[3]
Abstract
The practical and operational challenges of responding to disasters such as earthquakes, tsunamis and hurricanes are well known, so the recent decision by the UN Human Rights Council to commission research on best practices and challenges in the promotion and protection of human rights in post-disaster situations reflects the increasing acknowledgement of the human rights implications of natural and human-made disasters. This article analyses the approach taken by existing international accountability mechanisms concerning humanitarian preparations for and responses to major natural disasters, before advancing proposals for more effective and systematic oversight of human rights protection in disasters. Such systemic approaches are intended to promote greater legal clarity for States and humanitarian actors confronted with the uncertainty and devastation resulting from major natural and human-made disasters, and as a means of spurring redress for those affected.
Keywords: disasters, human rights, monitoring, accountability, Human Rights Council, Treaty Bodies, ILC /rampen, mensenrechten, toezicht, verantwoording, Mensenrechtenraad, Verdragsorganen, ILC
‘Disaster protection is not only about science; it is also about the development of appropriate institutional arrangements so that the best possible use is made of scientific information … This means that in addition to establishing standards based on … rights, well-designed institutions of accountability need to be created. Basic disaster relief is not about charity’.[4]
- INTRODUCTION
The unambiguous need for improved legal frameworks for the protection of persons in the event of disasters has been on the international agenda since the publication of the World Disasters Reportby the International Federation of Red Cross and Red Crescent Societies in 2000, which highlighted the lack of coordinated international legal mechanisms for disaster responses.[5]Unfortunately, the practical and operational challenges of responding to earthquakes, tsunamis and hurricanesare well known.[6]Rich countries such as New Zealand and the United States of America have been found wanting in the recent past,[7] and the humanitarian challenges are magnified many times over in developing countries such as the Philippines[8] or Haiti.[9]Moreover, the interplay between natural disastersand human-made disasters, such as major technological accidents, were starkly highlighted by the 2011 Japanese earthquake and tsunami, and the resulting nuclear emergency at the Fukushima power plant.[10]David Fisher has argued that such operational challenges arise because international disaster relief resembles a ‘swashbuckler’s paradise’, with a scattered and under-used international legal regime and scant applicable law at the national level.[11] Eduardo Valencia-Ospina, the International Law Commission’s Special Rapporteur on the Protection of Persons in the Event of Disasters,has likewise lamented the current ‘amorphous state of the law relating to international disaster response’, noting that it is often difficult to distinguish between lex lata and lex ferenda.[12]
To enhance legal clarity for States and humanitarian actors confronted with the uncertainty and devastation resulting from major natural and human-made disasters, a number of initiatives have been advanced over the past decade to elaborate the normative standards and legal frameworks for humanitarian action in disaster settings. Indeed, international law and practice is not silent on the legal implications for those affected by humanitarian crises – not least because human rights norms are equally applicable during such crises. For example, the international humanitarian law of armed conflict has contained explicit rights for civilians to request and receive humanitarian assistance in times of war for over 60 years;[13] while international criminal law invokes individual criminal responsibility for actions resulting in the denial of humanitarian assistance, including starvation as a method of warfare or attacks against humanitarian personnel.[14] Moreover, international refugee and displaced persons law has fundamentally advanced our understanding of the rights-holders and duty-bearers in natural and human-made disastersthrough, for example, the UN Guiding Principles on Internal Displacement and the role of the UN High Commissioner for Refugees in responding to displacement caused by disasters.[15] Meanwhile, it is widely recognised thathuman rights treaties and international customary human rights norms continue to apply in disaster settings, as evidenced in this article.[16]Finally, a wide range of bilateral, trilateral and regional instruments relating to disaster risk reduction, civil defence and mutual assistance have been concluded,[17]as well as a plethora of non-binding texts intended to regulate or clarify the organisation, planning and implementation of national, regional and international responses to disasters, from UN General Assembly Resolutions to minimum standards and guiding principles developed by non-governmental humanitarian actors.[18]
While it has proven challenging to systemically condense these various legal and non-legal norms and apply them in disaster settings,it is clear from such initiativesthat the protection of persons is of prime concern in disaster responses.Consequentially, the comprehensive body of international human rights law is undeniably of relevance, especially as it advances distinct rights and obligations relevant to disaster settings, such as the rights to life, food, water, shelter and health. This article thereforeemphasises the applicability of human rights law in disaster settings, while specifically examining how the UN human rights supervisory mechanisms can usefully contribute in a more systematic manner to the elaboration of normative standards and accountability for human rights protection in disaster settings. Indeed, while various UN human rights bodies have engaged in discussion of the human rights implications of disasters in their monitoring work, their approaches to-date have remained ad hoc and lack systemic coordination.[19]It will be argued thatthis is a lost opportunity, since the UN human rights bodies play an important role in providing practical guidance on the application of relevant human rights standards, while also fulfillingthe related, yet under-addressed, function of promotingaccountability of State and non-State humanitarian actors.
Two recent UN documents strongly support the timeliness of our proposals in this paper.First of all, Human Rights Council Resolution 22/16 (March 2013)has called for comprehensive research on the ‘best practices and main challenges in the promotion and protection of human rights in post-disaster and post-conflict situations, with a focus on human rights mainstreaming in relief, recovery and reconstruction efforts’.[20]This is the first time that the Human Rights Council has called for a specific study on the human rights implications of disasters, although the focus on ‘relief, recovery and reconstruction’ isunnecessarily narrow. Pro-active disaster risk reduction and preparedness is equally important, and a human rights approach is especially relevantduring this stage of humanitarian action as well.[21]Simultaneously, General Assembly Resolution 67/87 (March 2013)stressed that the accountability of humanitarian actors should be enhanced as accountability is ‘an integral part of effective humanitarian assistance’.[22]Such developments demonstrate thatalthough humanitarian action continues to take place within the boundaries of an international order based on sovereign States, further development of international law on this topic must ensure that individuals affected by natural and human-made disasters remain the central focus.[23]
Since international human rights law can guide the conduct of humanitarian actors duringall stages of disaster preparation, response and recovery, this paper will examine how the existing international mechanisms for monitoring violations of human rights can reinforce and mainstream the protection of persons in natural and human-made disasters. In particular, this paper focuses on the potential role of various UN Charter and Treaty-based mechanisms, such as the Human Rights Council and Universal Periodic Review(UPR) process, the Special Procedure thematic mandate structuresand the Treaty Body monitoring committees, in examining the linkages between human rights and disasters. In recognition that the challenge of addressing cross-cutting thematic issues such as ‘human rights and disasters’ reflects the current strain on the UN monitoring system as a whole, these concrete proposals are linked tothe broader discussions on UN human rights reform and strengthening, as initiated by the 2009 ‘Dublin Statement’[24]and elaborated in the recent General Assembly Resolution 68/268 setting out measures to reform the UN human rights treaty body system.[25]In order to underpin the proposals advanced in Section 4, the following sections will first introduce and discussrecent developments in the field of human rights, accountability and disaster management, including the International Law Commission (ILC) draft articles on the protection of persons in the event of disasters, before analysing relevant pronouncements made by UN human rights monitoring bodies.
- HUMAN RIGHTS IMPLICATIONS OF DISASTERS
2.1.application of human rights law in disaster settings
Despite debate surrounding whether or not a general right to offer and receive humanitarian assistance exists in international law,[26] it is clear that international human rights law is a logical framework for disaster contexts as it includes explicit rights and obligations for the protection of persons, including the right to life and an adequate standard of living.[27] Such rights are at the core of disaster preparedness and humanitarian response, especially when humanitarian action is understood to include assistance, services or goods indispensable for the survival and fulfilment of the essential needs of victims or intended to save lives and alleviate suffering.[28] As for States, if national authorities are unable, or unwilling, to provide the necessary assistance to tackle such needs, the UN Committee on Economic, Social and Cultural Rights has highlighted that:
States parties have a joint and individual responsibility, in accordance with the Charter of the United Nations and relevant resolutions of the United Nations General Assembly … to cooperate in providing disaster relief and humanitarian assistance in times of emergency, including assistance to refugees and internally displaced persons. Each State should contribute to this task to the maximum of its capacities.[29]
The extent of potential rights violations was starkly highlighted in the International Development Law Organization’s manual on international law and standards applicable in disasters,[30]including violations of the rights to food,[31] clothing,[32] adequate housing,[33] sanitation,[34] health and medical services,[35] and water.[36]Indeed, the connection between these rights and an individual’s inherent right to life in disastersettingswas noted by Peter MacAlister-Smith over 30 years ago.[37] Moreover, as highlighted in the 2006 UN Inter-Agency Standing Committee’s(IASC) ‘Operational Guidelines on Human Rights and Natural Disasters’, numerous human rights violations can also occur as a result of humanitarian operations, including ‘unequal access to assistance; discrimination in aid provision; enforced relocation; sexual and gender-based violence; loss of documentation; recruitment of children into fighting forces; unsafe or involuntary return or resettlement; and issues of property restitution’.[38] Of note, although the IASC originally posited a hierarchy of rights that envisaged priority during the initial disaster response phase being given to the rights to physical security, integrity, and basic necessities of life, over and above other economic, social, cultural, civil or political rights, the IASC firmly rejected such an approach in 2011, arguing that ‘only the full respect of all rights … can ensure adequate protection of the human rights of those affected by natural disasters’.[39]The recognition of the indivisibility of rights in regard to disasters can likewise be seen from the emerging jurisprudence on State responsibility to undertake preventative measures, for example in relation to respect for life or the home and the right to information, to reduce the risk and consequences of disasters occurring.[40] Such international judicial acceptance of States’ obligations provides an additional impetus for a comprehensive examination of all the human rights implications of disasters, particularly considering that pre-disaster preparedness is excluded from the narrow scope of the research proposed by HRC Resolution 22/16.
As natural events such as earthquakes or flooding only become disasters when they negatively impact human life, livelihoods or property, a broadly accepted description of a ‘disaster’ is a natural hazard plus vulnerability.[41]This description highlights that people are impacted differently by the same event, and recognises the differential vulnerabilities within and between populations to diverse natural hazards. For instance, the exceptionally large-scale earthquake that hit Japan in March 2011 led to relatively fewer casualties than smaller earthquakes in Haiti and Chile due to Japan’s ‘famed emergency preparedness and construction standards’.[42]Identifying and remedying pre-existing vulnerabilities, for example in the field of adequate housing, are thus of fundamental importance prior to a disaster occurring.[43]One can therefore predict that States with strong internal procedures and mechanisms deal more effectively with disaster situations than those whose infrastructure and State apparatus are unprepared and so more easily overwhelmed.[44]A human rights approach towards disasters can play a useful role in guiding such preparations and establishment of internal standards and procedures, which in turn rely upon effective systems for monitoring and accountability at the national, regional and international levels.[45]
Finally, from a normative perspective,one can argue thatthe concerted focus on improving the operational and institutional effectiveness and delivery of humanitarian assistance over the past 25 yearshas led to a stage in our evolving understanding of humanitarian norms in times of war and disaster where one can talk of an emerging ‘acquis humanitaire’.[46] In other words, a defined body of law and practice specifically relating to the protection of persons in times of humanitarian crisis which includes provisions of general and customary international law, as well as a broad range of non-binding sources that provide operational and normative guidance for humanitarian preparations and responses to armed conflicts and natural or human-made disasters.Eduardo Valencia-Ospinahas argued that ‘[t]o the extent that international disaster relief law might be said to exist as an autonomous branch of international law, it owed that character to the [International Law] Commission’s work’,[47] and acknowledged the existence of ‘the acquis of the international law of disaster response’.[48] As the ILC’s deliberations represent the most significant attempt to develop a global legal framework on disaster response and the protection of disaster victims, it is therefore pertinent to review their on-going work, in particular the importance placed on human rights within their discussions.
2.2.the ilc draft articles on the protection of persons in the event of disasters
The ILC commenced work on the topicof disasters in 2007, and finalised the first reading of the draft articles on the protection of persons in the event of disasters at their 66th session in May 2014.[49] The current format of the draft articles comprises 21 draft articles and commentary on 18 of the draft articles.[50] The purpose of the draft articles is to develop an international frameworkto guide the actions of States, humanitarian actors and the international community in national and international disaster responses, through codification of existing rights and obligations and the potential progressive development of international law on the protection of persons in the event of disasters. It is outside the scope of this paper to analyse the draft articles in totality, so instead we concentrate on three key articles which set out the overall purpose of the text and the role that human dignity and human rights should play in international responses to natural and human-made disasters. It should be noted that the overriding focus of the ILC’s work is the protection of persons in the event of disasters. So while a ‘disaster’ is defined as: ‘a calamitous event or series of events resulting in widespread loss of life, great human suffering and distress, or large-scale material or environmental damage, thereby seriously disrupting the functioning of society’, the Commentaries make clear that the inclusion of economic or environmental damage is limited to the impact such damage has on individuals, rather than providing a mechanism for determination of economic loss in general.[51] Furthermore, the draft articles primarily cover the rights and obligations of States (as opposed to non-State actors), including both inter-State rights and obligations and the relationship between the affected State and persons in need of protection.[52]
The purpose of the draft articles as set out in draft Article 2 is to ‘facilitate an adequate and effective response to disasters that meets the essential needs of the persons concerned, with full respect for their rights’.[53]In his preliminary report, Eduardo Valencia-Ospina highlighted that ‘[t]he essence of a rights-based approach to protection and assistance is the identification of a specific standard of treatment to which the individual, the victim of a disaster … is entitled’.[54] In addition, he subsequently noted that ‘[t]here is no stark opposition between needs and a rights-based approach to the protection of persons in the event of disasters. On the contrary, a reasonable, holistic approach to the topic seems to require that both rights and needs enter the equation, complementing each other when appropriate’.[55]The Commentary to draft Article 2 likewise referencesdebate within the humanitarian community between ‘rights-based’ and more traditional ‘needs-based’ approaches, concluding that ‘[t]he prevailing sense of the Commission was that the two approaches were not necessarily mutually exclusive, but were best viewed as being complementary’.[56]
Having established the applicability of rights in disaster settings, the draft articles set out two connected articles specifically covering human dignity and human rights.[57] Draft Article 5provides that States and relevant humanitarian organisations shall ‘respect and protect the inherent dignity of the human person’ – which the Commission reaffirms as the core principle that informs and underpins international human rights law, and one that connotes both positive and negative obligations on States and humanitarian actors.[58] The inclusion of a substantive article on human dignity provides an interesting correlation between the underlying principle and motivation behind humanitarian responses to crises, namely to alleviate human suffering, with the well-established international legal human rights framework.[59] Draft Article 6 subsequently reaffirms that ‘persons affected by disasters are entitled to respect for their human rights’. This deceptively simple article masks the range of issues raised. First of all, the Commentary highlights that the general reference to human rights covers both obligations expressed in relevant international agreements and customary international law, as well as best practices for the protection of human rights in international non-binding texts.[60] This reference to best practices, as opposed to binding legal norms, raises interesting questions regarding the systemic interpretation of international law, and the ILC’s work on the fragmentation of international law.[61]