Improving human rights accountability in natural and human-made disasters
Dr Dug Cubie examines some of the legal challenges that arise in relation to international humanitarian crises and disasters.
Preparing and Responding to Disasters
The practical and operational challenges of responding to major natural and human-made disasters are unfortunately well known. The 2011 earthquake in Christchurch, New Zealand and major storms in the USA, such as Hurricane Katrina that crippled New Orleans or Hurricane Sandy that battered New York, highlight that even the disaster preparedness and emergency responses of rich countries can be severely wanting. The humanitarian challenges of major disasters are magnified many times over in developing countries such as Nepal or Haiti. Moreover, the interplay between natural and human-made disasters, such as major technological accidents, were starkly highlighted by the 2011 Japanese earthquake and tsunami, and resultant nuclear emergency at the Fukushima power plant. David Fisher of the International Federation of Red Cross and Red Crescent Societies (IFRC) 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.
So to enhance legal clarity for States and humanitarian actors confronted with the uncertainty and devastation resulting from major disasters, a number of recent initiatives have elaborated minimum standards and legal frameworks for humanitarian responses, such as the Sphere Handbook and the Red Cross/Red Crescent Code of Conduct. Additionally, a wide range of well-established branches of international law, such as refugee law and international humanitarian law, provide guidance on the legal rights and obligations in humanitarian crises. Likewise, the emerging discipline of international disaster laws has received endorsement by the UN International Law Commission through their on-going project examining the protection of persons in the event of disasters. Finally, international human rights law provides minimum guarantees of humane treatment for all persons, irrespective of the challenging situations they may find themselves in.
Application of Human Rights Law to Disasters
While it has proven challenging to systemically condense these various binding and non-binding norms and apply them in disasters, it is clear from such initiatives that the protection of persons is of prime concern in disaster prevention and response. Consequentially, the comprehensive body of international human rights law is undeniably of relevance, especially as it advances distinct rights and obligations relevant to disasters, in particular the right to life and an adequate standard of living (which includes the rights to food, water, shelter and health).
In a recent article, Marlies Hesselman and myself examined the question of accountability for human rights protection in disasters, and identified some practical proposals to more fully integrate disaster awareness into the UN human rights monitoring system. We argue that since international human rights law can guide the conduct of humanitarian actors during all stages of disaster preparation, response and recovery, the existing international mechanisms for monitoring violations of human rights can reinforce and mainstream the protection of persons in disasters. In particular, there is a need for a more systematic approach by the various UN Charter and treaty-based mechanisms, such as the Human Rights Council and Universal Periodic Review process, plus the special procedure thematic mandate structures and the treaty-body monitoring committees, in examining the linkages between human rights and disasters.
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. 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. Identifying and remedying pre-existing vulnerabilities, for example in the field of adequate housing, are thus of fundamental importance prior to a disaster occurring. 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.
Improving Human Rights Accountability
To date, the various UN human rights bodies have not examined the issue of human rights in disasters in a comprehensive manner and generally only refer to victims of disasters and those living in disaster-prone areas as part of a list of particularly vulnerable persons. Therefore, the conclusion of disaster-specific Human Rights Council Resolutions, in addition to General Comments and Recommendations from the relevant human rights treaty bodies, could help promote a coordinated and universal understanding of how existing human rights treaties apply in disasters.
Concurrently, the UN human rights system should promote governmental accountability via greater monitoring of domestic remedies for individuals, as national authorities have the primary responsibility to ensure the protection of all persons in their territory. The extensive ratification of international human rights treaties by States and authoritative nature of UN human rights bodies provide a strong impetus for more explicit inclusion of the human rights implications of disasters within existing UN human rights mechanisms. Indeed, obliging States to report on their preparations for and responses to disasters would promote more consistent human rights-based approaches to humanitarian crises.
The urgency to examine potential violations of human rights in disasters is underscored by the acknowledgement that climate change will lead to the increased frequency and severity of hydro-meteorological disasters, such as hurricanes and flooding, across the globe. So there is a growing need for a coordinated international approach to recognise and enumerate the rights-holders and duty-bearers in disasters, and to provide practical support and guidance to States and humanitarian actors on how best to ensure human rights are respected in the complex context of disaster preparation and response. Such improved accountability mechanisms would allow for increased monitoring of human rights in disasters, thereby ensuring that human rights principles become embedded in domestic disaster management systems, and giving practical effect to the requirement to respect the human rights and inherent dignity of all people affected by disasters.
 D. Cubie and M. Hesselman, ‘Accountability for the Human Rights Implications of Natural Disasters: A Proposal for Systematic International Oversight’ (2015) 33(1) Netherlands Quarterly of Human Rights 9-41.