Rights-Based Disaster Planning

RIGHTS-BASED DISASTER PLANNING

George Kent

University of Hawai’i

March 10, 2012

ABSTRACT

Governments havemoral and legal obligations to prepare for life-threatening conditions. Their plans shouldplainly set outtheir commitments to action before, during, and after disaster events.

Disaster risk reduction programs would be strengthened if they were organized as rights-based social systems. Individuals would be entitled to specific services, and would be able to call the duty bearers to account through appropriate institutional arrangements.

Rights-based systems for disaster risk reduction could be established to clarify rights, obligations, and accountability mechanisms at every level of governance. At each level, there should be clear rules regarding the provision of assistance from outside, alongside self-help from within the jurisdiction.

CONTENTS

The Global Institutional Setting

Rights-Based Social Systems

Human Rights and Disasters

Other DRR Standards

Discrimination

Disabilities and Disasters

Role of the United Nations

Conclusion

KEYWORDS

Disaster, risk, emergency, rights, obligations, accountability, discrimination, Sphere Project, Hyogo Framework, International Strategy for Disaster Reduction (ISDR), United Nations University.

ACKNOWLEDGMENT

I would like to thank my friends in the Radix discussion group for their inspiration and advice over many years. They have contributed enormously to the preparation of this essay. See

In New Orleans in 2005, Hurricane Katrina led to an ongoing storm of complaints about the authorities failing to protect the people before, during, and after the disaster events. Spike Lee produced films full of searing criticism, charging incompetence and discrimination. The earthquake in Sichuan, China in 2008 prompted many protests, including complaints that many schools collapsed because of shoddy construction. There has been severe criticism of Japan’s handling of its tsunami and nuclear crises in March 2011.In November 2011, riots broke out in Van, Turkey because of anger at the quality of the state’s relief efforts.

No one protests against events in nature. People protest human failures, especially the failures of governments to carry out their responsibilities for preparing and protecting people. Occasional lapses in judgment might be forgiven, but sustained and systematic failures are inexcusable. Measures need to be taken to make sure that government agencies have well defined responsibilities, and to hold them accountable if they fail to do what they should do.

Governments are obligated to act to reduce disaster risks. However, so long as the obligations are seen solely as moral imperatives, and not as legal obligations, they will remain soft. Disaster plans at every level could be strengthened by designing them as rights-based systems, with clear rights, obligations, and mechanisms of accountability set out in the law (Kent 2001). Ordinary people should have rights to receive specific services before, during and after disasters. Rights holders should have means for holding the duty bearers accountable for carrying out their obligations to deliver those services.

THE GLOBAL INSTITUTIONAL SETTING

The task of reducing the risks of harm and of managing various kinds of emergencies is primarily the responsibility of national governments and sub-national governmental units such as states and provinces. City and town governments have some responsibilities as well. Of course, individuals and families also need to be prepared to act to protect themselves.

The international community provides support services for the management of emergencies through the United Nations’ Office for Coordination of Humanitarian Affairs (OCHA 2009). Some emergency services are delivered internationally on an ad hoc basis,mainly by a few high-income countries, and often by neighboring countries. There are few concrete legal obligations to provide international humanitarian assistance.

The United Nations has its International Strategy for Disaster Reduction (UNISDR). It has facilitated a number of programs, such as the work of the United Nations Development Program for developing capacities at national levels, the World Bank’s Global Facility for Disaster Reduction and Recovery (GFDRR), the Integrated Research on Disaster Risk (IRDR) program of the International Council for Science (ICSU), the Global Network of Civil Society Organizations for Disaster Reduction (GNDR), the Global Earthquake Model (GEM) program of Organization for Economic Cooperation and Development (OECD), and others. Many other programs at global, regional (e.g., European Union), national and local levels also participate in the overall ISDR System.

The ISDR defines disaster as . . .

A serious disruption of the functioning of a community or a society causing widespread human, material, economic or environmental losses which exceed the ability of the affected community or society to cope using its own resources (ISDR 2006).

Disaster risk reduction (DRR)is defined as:

The conceptual framework of elements considered with the possibilities to minimize vulnerabilities and disaster risks throughout a society, to avoid (prevention) or to limit (mitigation and preparedness) the adverse impacts of hazards, within the broad context of sustainable development (ISDR 2006).

The huge Indian Ocean tsunami in 2004 prompted reconsideration of the entire system. This led to the Hyogo Framework for Action 2005-2015, “a ten-year plan to make the world safer from natural hazards (ISDR 2005).” The plan is based on five priority actions:

Priority Action 1: Ensure that disaster risk reduction is a national and a local priority with a strong institutional basis for implementation.

Priority Action 2: Identify, assess and monitor disaster risks and enhance early warning.

Priority Action 3: Use knowledge, innovation and education to build a culture of safety and resilience at all levels.

Priority Action 4: Reduce the underlying risk factors.

Priority Action 5: Strengthen disaster preparedness for effective response at all levels (ISDR 2005).

Several of the Hyogo priority actions would be facilitated with clear accountability in disaster risk reduction programs. This could be achieved by designing them as rights-based programs.

RIGHT-BASED SOCIAL SYSTEMS

Rights-based social systems can bedescribed in a generic way. In any well-developed system of rights there are three major roles to be fulfilled: the rights holders, the duty bearers, and the agents of accountability. The task of the agents of accountability is to make sure that those who have the duties carry out their obligations to those who have the rights. Thus, to describe a rights system, we need to know:

A. The nature of the rights holders and their rights;

B. The nature of the duty bearers and their obligations corresponding to the rights of the rights holders; and

C. The nature of the agents of accountability, and the institutional mechanisms through which they ensure that the duty bearers meet their obligations to the rights holders.

Rights are enforceable claims in relation to specific standards. Well-developed rights systems clearly identify the rights holders and their rights, the duty bearers and their obligations, and the mechanisms of accountability. They may be described in the law or in some other form of codification. In some cases, these things may not be fully articulated, but operate on the basis of a consensus in understanding.

Rights systems can be set up in many different settings, such as clubs, prisons, hospitals, and schools. In some cases, responsibility for implementation would rest not with a government, but with the institution's administration. The international human rights system described in the international human rights treaties is one concrete manifestation of the generic form of rights-based social systems.

Not all rights-based systems are based on human rights. Some mix human rights and other rights. Rights may be derived from various sources, includinglocal governments, religious teachings, standards of practice, and national and international law.

Contracts of many different kinds articulate the rights and obligations of the parties. Manyalso describe the institutional arrangements through which those who have the obligations could be called to account.

Accountability mechanisms can be judicial or administrative. Some may be informal, and depend on making governmental activities transparent and open to scrutiny, whether by the general public, concerned nongovernmental organizations, or agencies of government that monitor performance. There are international and national mechanisms of accountability, but most people would interact only with those that are set up locally.

Just as many communities have created nongovernmental food policy councils to address food issues that concern them, communities could also create permanent nongovernmental disaster policy councils. These permanent, local, nongovernmental groups could undertake a broad variety of activities to monitor and to influence governmental policy relating to disasters. For example, they could review disaster plans, check to see that buildings conformed to established codes, and ensure that adequate preparations have been made for people with particular vulnerabilities.They could call on government planners to considerimportant disaster possibilities that might have been neglected. Community groups of this sort could play important roles, including serving as agents of accountability in rights-based disaster programs.

The most fundamental accountability mechanisms in any rights-based program are those available to the rights holders themselves. Remedies for rights holders rest on the foundation that they must know their rights, and they must have appropriate institutional arrangements available to them for pursuing the realization of those rights. It is through these remedies that claims become enforceable. All rights (not just the human rights specified in international agreements) rest on the principle ubi jus ibi remedium--where there is a right there must be a remedy.Where there are no effective remedies, there are no effective rights.

Thus, while various agencies can play a part in ensuring that duty bearers do their jobs properly, the emphasis here is on the ways in which the rights holders themselves can play an active role in ensuring accountability. People should have a say about how they are treated. There should be some meaningful action that they can take if they feel their rights are not being respected. The remedies (recourse mechanisms) ensure that individuals will not be treated simply as passive objects.

Having rights that are enforceable means recognizing that people should have specific powers to make claims on the world in which they live.People must be able to claim their own rights, and not depend on others claiming their rights for them.

HUMAN RIGHTS AND DISASTERS

Some rights are universal, some are national, and some are local. The term human rights is reserved for those rights that are universal and relate to human dignity. With some exceptions, all people have all human rights all the time. If one has a human right, one can make a claim that the government and others must do or desist from doing specific things to further human dignity. Institutionalized recourse mechanisms ensure that rights holders have a voice, and thus a measure of dignity.

The claim that people have particular rights should not be confused with the claim that those rights are realized (fulfilled).

The human rights that are formally recognized are spelled out in international human rights agreements, all of which are available on the website of the Office of the High Commissioner for Human Rights (OHCHR 2012).

Currently, international human rights law does not explicitly address the right to protection and relief from disasters, but this is clearly implied. Article 3 of the Universal Declaration of Human Rights says, "Everyone has the right to life, liberty, and security of person." Article 25 says, "Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services . . ." These rights are elaborated in subsequent human rights agreements, particularly the International Covenant on Economic, Social and Cultural Rights.

The application of human rights law to disaster situations is examined in Jean Carmalt and Claudine Dale’s overview, “Human Rights and Disaster” (Carmalt 2011). A Brookings-Bern study proposes operational guidelines based on human rights (IASC 2011). Texts have been prepared to support classroom study of the role of human rights in relation to disasters (Pang 2010). The orientation of this essay is quite different. The emphasis here is not on human rights or any other particular rights, but rather, it is about establishing well-functioning rights-based systems in which there are effective recourse mechanisms through which the duty bearers can be held accountable.Carefully designed rights-based social systems, with effective mechanisms of accountability, can be effective tools of social policy.

So far, the international human rights system has not been implemented as well as it should be, mainly because it does not have sufficiently strong mechanisms of accountability.The modern international human rights system is imperfect, but it has been improved steadily since its beginnings with the adoption of the Universal Declaration of Human Rights in 1948.

OTHER DRR STANDARDS

There are several guidelines, codes, and standards for the provision of servicesin disaster settings. These include, for example, the Code of Conduct of International Red Cross and Red Crescent Societies (IFRC 2005), the Sphere Project’s standards for humanitarian assistance (Sphere Project 2011), the Good Humanitarian Donorship Initiative (Good Humanitarian Donorship 2012), and the Council of Europe’s draft ethical principles for disaster risk reduction (Council of Europe 2011).

Unlike human rights law, these standards are not rights-based. They are not centered on the idea that individuals potentially or actually affected by disasters are entitled to particular services, and thus should be able to call the duty bearers to account through designated institutional arrangements. These standards speak mainly to the providers of services, and not to their receivers. There is little expectation that ordinary people would know the standards or try to call anyone to account on the basis of those standards.

While these standards are not based on rights, theycould serve as sources for proposing rights. For example, the Inter-Agency Network for Education in Emergencies sets out standards for education in emergencies (Inter-Agency Network 2011). It would be only a short further step to establish that people in emergencies have specific rights to education. The right to education in emergencies could be meshed with the broad right to education movement.

There is a Coalition for Global School Safety and Disaster Prevention Education (Coalition 2012). This initiative could shift its thinking from children ought to have safe schools to children have a right to safe schools. Children and their parents could learn some of the standards, and learn how to use complaint mechanisms that are established for their use. They could learn how to do some types of building inspection. For more technical issues, they could be given opportunities to consult with independent experts. This involvement would be help to ensure structurally sound schools, and at the same time it would help children and their parents understand what their rights are and how to exercise them.

The Building Standards Association in India provides certification about standards and building codes, and yet, it is often the government schools that collapse during disasters (Save the Children India 2012). This helps us appreciate that having standards on the books is not enough. People in India should know what those standards are, and they should know what they could do if they suspect some of those standards have not been met.

Ideas for specific rights can be drawn from many different sources. To illustrate, theWorld Disasters Report for 2005 examined the importance of information before, during, and after disaster events (International Federation 2005). It could be established that people had rights to specific kinds of information in specific forms. For example, timely public after-action reports prepared by independent agencies could be very helpful for improving the transparency of disaster risk reduction programs.They could be required under the law.

People need to know what services they should and should not expect. In December 2011, “A Tennessee couple helplessly watched their home burn to the ground, along with all of their possessions, because they did not pay a $75 annual fee to the local fire department (Pfeiffer 2011).” If assistance services are to be limited through requirements for advance payment of fees, jurisdictional boundaries, or other sorts of rules, people need to know that well in advance.

In the United States, few people know about the Department of Agriculture’s Disaster Supplemental Nutrition Assistance Program, D-SNAP. There is a USDA Foods Program Disaster Manual, but it is designed primarily for service agencies (USDA 2011). No information is provided to the general public about what services they should expect in food supply crises. Disaster planners generally give little attention to the possibility of food supply crises, but the general public does not know that. Studies on food security in the contextof other kinds of disasters have had little to say about rights (Food and Agriculture Organization of the United Nations 2011).