· Web viewIn 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

ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTSNOT TO BE CITED PRIOR TO PUBLICATION

ACCOUNTABILITY FOR THE HUMAN RIGHTS IMPLICATIONS OF

NATURAL DISASTERS: A PROPOSAL FOR SYSTEMIC

INTERNATIONAL OVERSIGHT1

DUG CUBIE2 & MARLIES HESSELMAN3

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

1. INTRODUCTION

1 This paper originated in presentations at the University of Leiden conference on International Humanitarian Assistance and International Law, 24-25 January 2013. Dr Cubie acknowledges the generous support of an Irish Research Council New Foundations award for attendance at this conference, and subsequent research visit to the University of Groningen. We would also like to thank Thérèse O’Donnell, University of Strathclyde, for her insightful comments, as well as the valuable input and suggestions of two anonymous reviewers. Any mistakes or omissions remain our own.2 Lecturer in Law, School of Law, Queen’s University Belfast, Northern Ireland.3 PhD candidate, Department of International and Constitutional Law, University of Groningen, the Netherlands.4 Randolph Kent, ‘The Human Right to Disaster Mitigation and Relief’ (2001) 3(3) Environmental Hazards 137, 137.

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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 Report by 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 hurricanes are 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

Philippines8 or Haiti.9 Moreover, the interplay between natural disasters and 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

5 World Disasters Report 2000, International Federation of Red Cross and Red Crescent Societies (IFRC) (Geneva, 2000), 145: ‘There is no definitive, broadly accepted source of international law which spells out legal standards, procedures, rights and duties pertaining to disaster response and assistance. No systematic attempt has been made to pull together the disparate threads of existing law, to formalize customary law or to expand and develop the law in new ways’.6 See: Victoria Bannon and David Fisher, ‘Legal Lessons in Disaster Relief from the Tsunami, the Pakistan Earthquake and Hurricane Katrina’ (March 2006) 10(6) ASIL Insights.7 See for example: Maria Isabel Medina, ‘Confronting the Rights Deficit at Home: Is the Nation Prepared in the Aftermath of Katrina? Confronting the Myth of Efficiency’ (2006-07) 43 California Western Law Review 9.8 Tania Branigan and Kate Hodal, ‘Typhoon Haiyan: Frustration at Slow Pace of Relief Effort’ The Guardian (London, 15 November 2013) <www.theguardian.com/world/2013/nov/14/typhoon-haiyan-relief-effort-stalls-philippines> accessed 28 October 2014.9 Response to the Humanitarian Crisis in Haiti following the 12 January 2010 Earthquake: Achievements, Challenges and Lessons to be Learned, Inter-Agency Standing Committee (IASC), 2010.10 Daniel Farber, ‘Legal Scholarship, The Disaster Cycle, and the Fukushima Accident’ (2012) 23(1) Duke Environmental Law and Policy Forum 1.11 David Fisher, ‘International Disaster Relief: A Growing Regulatory Dilemma’ (2007) 101 Proceedings of the Annual Meeting (ASIL) 114.12 Eduardo Valencia-Ospina, Preliminary Report on the Protection of Persons in the Event of Disasters (5 May 2008) UN Doc A/CN.4/598, para.59.

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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 disasters through, 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 that human 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

13 Ruth Stoffels, ‘Legal Regulation of Humanitarian Assistance in Armed Conflict: Achievements and Gaps’ (September 2004) 86(855) International Review of the Red Cross 515.14 Christa Rottensteiner, ‘The Denial of Humanitarian Assistance as a Crime under International Law’ (September 1999) 835 International Review of the Red Cross 555; Dug Cubie, ‘Is the Wilful Denial of Humanitarian Assistance in Natural and Human-Made Disasters a Crime Against Humanity?’ (Summer 2012) ASIL Accountability Newsletter.15 See: UN Commission on Human Rights, The Guiding Principles on Internal Displacement (1998) UN Doc E/CN.4/1998/53/Add.2; Roberta Cohen, ‘Reconciling Responsibility to Protect with IDP Protection’, Brookings-LSE Project on Internal Displacement, March 2010, 8; Bryan Deschamp, Michelle Azorbo, and Sebastian Lohse, Earth, Wind and Fire: A Review of UNHCR’s Role in Recent Natural Disasters , UNHCR Policy Development and Evaluation Service (Geneva, June 2010).16 See for example, draft articles 5 (Human Dignity) and 6 (Human Rights) in the ILC draft articles on the protection of persons in the event of disasters (15 May 2014) UN Doc A/CN.4/L.831. See also: UN Committee on Economic, Social and Cultural Rights, General Comments: No.4, The right to adequate housing (13 December 1991) UN Doc E/1992/23, para.8; No.12, The right to adequate food (12 May 1999) UN Doc E/C.12/1999/5, paras.5, 6, 13, 15, 38; No.14, The right to the highest attainable standard of health (11 August 2000) UN Doc E/C.12/2000/4, paras.16, 40, 65; No.15, The right to water (20 January 2003) UN Doc E/C.12/2002/11, paras.16, 22, 34, 60; Committee on the Rights of the Child, General Comment No.3, HIV/AIDS and the rights of the child (17 March 2003) UN Doc CRC/GC/2003/3, para.34.17 Law and Legal Issues in International Disaster Response: A Desk Study, IFRC (Geneva, 2007), pp.62-84; Secretariat Memorandum on the Protection of Persons in the Event of Disasters , 60th Session of the ILC (11 December 2007) UN Doc A/CN.4/590, pp.10-11, 29-36.18 Dug Cubie, ‘An Analysis of Soft Law Applicable to Humanitarian Assistance: Relative Normativity in Action?’ (2012) 2 Journal of International Humanitarian Legal Studies 177.

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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 initiatives that 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 therefore emphasises 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 that this 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 fulfilling the

related, yet under-addressed, function of promoting accountability 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’ is unnecessarily narrow.

Pro-active disaster risk reduction and preparedness is equally important, and a human rights

approach is especially relevant during this stage of humanitarian action as well.21

Simultaneously, General Assembly Resolution 67/87 (March 2013) stressed that the 19 For comparable analysis of the human rights implications of disasters, and the argument that ‘applying human rights to natural or human made disasters has not yet become systematic’, see: Walter Kälin, ‘The Human Rights Dimension of Natural or Human-Made Disasters’ (2012) 55 German Yearbook of International Law 119, 125-26, 147.20 HRC Res 22/16, Promotion and protection of human rights in post-disaster and post-conflict situations (18 March 2013) UN Doc A/HRC/22/L.23. An initial progress report was published in August 2014 which provides a brief discussion of human rights in disasters and conflicts, but does not examine the issue in detail. See: Progress report on the research-based report of the Human Rights Council Advisory Committee on best practices and main challenges in the promotion and protection of human rights in post-disaster and post-conflict situations (11 August 2014) UN Doc A/HRC/27/57.

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accountability of humanitarian actors should be enhanced as accountability is ‘an integral part

of effective humanitarian assistance’.22 Such developments demonstrate that although

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

during all 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 structures and 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 to

the 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 discuss

recent developments in the field of human rights, accountability and disaster management,

including the International Law Commission (ILC) draft articles on the protection of persons 21 For discussion of pre-disaster preparedness, see: Marlies Hesselman, ‘Establishing a Full “Cycle of Protection” for Disaster Victims: Preparedness, Response and Recovery according to Regional and International Human Rights Supervisory Bodies’ (2013) 18(2) Tilburg Law Review 106. There is no accepted legal definition of ‘humanitarian assistance’. From an operational perspective, humanitarian agencies describe ‘humanitarian action’ as activities at all stages of crisis prevention, mitigation and response. See: Dug Cubie, ‘An Enchanted Tool? Humanitarian Assistance and the ILC Draft Articles on the Protection of Persons in the Event of Disasters’ (2009-2010) IV-V Irish Yearbook of International Law 119, 122-29.22 UNGA Res 67/87 (26 March 2013) UN Doc. A/RES/67/87, para.10.23 See: Official Records of the General Assembly, Sixty-third Session, Supplement No.10 (UN Doc A/63/10), Chapter VII, para.316; Provisional Summary Record of the 3057 th ILC Meeting (4 June 2010) UN Doc A/CN.4/SR3057, Ms Jacobsson.24 ‘Dublin Statement on the Process of Strengthening of the United Nations Human Rights Treaty Body System’, November 2009 <www2.ohchr.org/english/bodies/HRTD/docs/DublinStatement.pdf> accessed 28 October 2014. See also: ‘Statement by Navanethem Pillay, UN High Commissioner for Human Rights on the Dublin Statement’, 19 November 2009 <www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=9642&LangID=E> accessed 28 October 2014.25 UNGA Res 68/268, Strengthening and enhancing the effective functioning of the human rights treaty body system (9 April 2014) UN Doc A/RES/68/268. For analysis of Resolution 68/268, see: Christen Broecker and Michael O’Flaherty, The Outcome of the General Assembly’s Treaty Body Strengthening Process: An Important Milestone on a Longer Journey, Universal Rights Group Policy Brief (June 2014).

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in the event of disasters, before analysing relevant pronouncements made by UN human rights

monitoring bodies.

2. 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

26 For conflicting views, see: Yoram Dinstein, ‘The Right to Humanitarian Assistance’ [Autumn 2000] Naval War College Review 77, 77; David Fisher, ‘The Right to Humanitarian Assistance’ in W. Kälin and others (eds), Incorporating the Guiding Principles on Internal Displacement into Domestic Law: Issues and Challenges , ASIL and Brookings-Bern Project on Internal Displacement, Studies in Transnational Legal Policy No.41, 2010, 51-52.27 As discussed in: Valencia-Ospina (n 12), para.26. For analysis of the substantive application of human rights law in disasters, see: Hesselman (n 21); Marlies Hesselman, ‘Regional Human Rights Regimes and Humanitarian Obligations of States in the Event of Disaster’ in Andre Zwitter and others (eds), Humanitarian Action: Global, Regional and Domestic Legal Responses (CUP, forthcoming December 2014).28 Hugo Slim highlighted the need for a holistic approach to humanitarian action when he attacked the commodification of humanitarianism and its reduction to basic packages of material help as a ‘serious heresy which undermines wider humanitarian values’. Hugo Slim, ‘Relief Agencies and Moral Standing in War: Principles of Humanity, Neutrality, Impartiality and Solidarity’ (1997) 7(4) Development in Practice 342, 345.29 CESCR General Comment No.14 (n 16), paras.40, 65. See also: CESCR, General Comment No.12 (n 16), para.38. Such views have a long providence: in 1758 Emer de Vattel stressed a State’s obligation to ‘save [other Nations] from disaster and ruin, so far as it can do so without running too great risk. ... if a Nation is suffering from famine, all those who have provisions to spare should assist it in its need, without however, exposing themselves to scarcity ... To give assistance in such dire straits is so instinctive an act of humanity that hardly any civilized Nation is to be found which would refuse absolutely to do so’. Emer de Vattel, The Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and of Sovereigns , text of 1758, Books I-IV, Vol. iii, 114-15.

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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 disaster settings was 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

30 Erica Harper, International Law and Standards Applicable in Natural Disaster Situations (International Development Law Organization 2009).31 See: International Covenant on Economic, Social and Cultural Rights 1966, 993 UNTS 3 (ICESCR), Article 11; Declaration of the Rights of the Child, UNGA Res 1386(XIV), 1959; Universal Declaration on the Eradication of Hunger and Malnutrition, UNGA Res 3348(XXIX), 1974, para.1; Food and Agricultural Problems, UNGA Res 39/166, 1984, Principle 6.32 See: Universal Declaration of Human Rights 1948, Article 25; ICESCR, Article 11.33 ibid, ICESCR, Article 11.34 ibid.35 ibid, Article 12.36 Convention on the Elimination of All Forms of Discrimination Against Women 1979, 1249 UNTS 13 (CEDAW), Article 14(2)(h).37 Peter MacAlister-Smith, ‘Human Rights and Disaster Relief’ (1980) 5 Holdsworth Law Review 173. For analysis of the rights applicable during internal displacement, see: Fisher (n 26). See also: David Fisher, ‘Legal Implementation of Human Rights Obligations to Prevent Displacement Due to Natural Disasters’, in particular 554-57, in the same volume.38 Inter-Agency Standing Committee, Protecting Persons Affected by Natural Disasters: IASC Operational Guidelines on Human Rights and Natural Disasters, June 2006, p.8.39 For the original iteration, see: Inter-Agency Standing Committee, Human Rights and Natural Disasters: Operational Guidelines and Field Manual on Human Rights Protection in Situations of Natural Disaster, Brookings-Bern Project on Internal Displacement, pilot version March 2008, at pp.7-8. For the revised version, see: Inter-Agency Standing Committee, IASC Operational Guidelines on the Protection of Persons in Situations of Natural Disasters, Brookings-Bern Project on Internal Displacement, January 2011, pp.9-10 (emphasis in original).

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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

40 See: Oneryildiz v. Turkey App no 48939/99 (ECtHR, 30 November 2004) following a methane explosion in a shantytown built on a rubbish dump; Budayeva and others v. Russia App nos 15339/02, 2116602, 20058/02, 11673/02 and 15343/02 (ECtHR, 20 March 2008) following a mudslide that destroyed the village of Nalchik.41 Terry Cannon, ‘Reducing People’s Vulnerability to Natural Hazards: Communities and Resilience’, United Nations University, World Institute for Development Economic Research, Research Paper No.2008/34, April 2008, p.2.42 Brian Concannon, and Beatrice Lindstrom, ‘Cheaper, Better, Longer Lasting: a Right-Based Approach to Disaster Response in Haiti’ (2011) 25 Emory International Law Review 1145, 1167. Although one can argue that the Japanese Government had an obligation to more accurately calculate the potential risks from earthquakes and tsunamis in the affected region, particularly considering the high impact that damage to a nuclear power plant can cause.43 Charles Gould, ‘The Right to Housing Recovery After Natural Disasters’ (2009) 22 Harvard Human Rights Journal 169, 180-81: ‘Our understanding is improving regarding the extent to which human action is present in the precipitation or mitigation of natural disasters. To the individual who loses her home, the distinction may be of little immediate interest, but it is a significant factor in evaluating liability and in shaping a theory of natural disasters that, in turn, will influence the development of a human rights framework’.44 See for example: John Telford, ‘Disaster Recovery: an International Humanitarian Challenge?’ in Patrick Daly, Michael Feener, and Anthony Reid (eds), From the Ground Up: Perspectives on Post-Tsunami and Post-Conflict Aceh, Institute of Southeast Asian Studies, 2012, 25-39, 25-26. However, for a critique of the US response to Hurricane Katrina, see: Susannah Sirkin, ‘The Debacle of Hurricane Katrina: A Human Rights Response’ (2006) 30 Fletcher Forum of World Affairs 223.

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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 that the concerted focus on

improving the operational and institutional effectiveness and delivery of humanitarian

assistance over the past 25 years has 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-Ospina has 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 topic of 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 45 For further elaboration, see: Hesselman (n 21).46 See: Dug Cubie, ‘Clarifying the “Acquis Humanitaire”: A Transnational Legal Perspective on the Internalization of Humanitarian Norms’ in David Caron, Michael Kelly and Anastasia Telesetsky (eds), The International Law of Disaster Relief (CUP 2014).47 Summary of 25th UNGA Sixth Committee Meeting (2011) UN Doc A/C.6/66/SR.25, para.67.48 Eduardo Valencia-Ospina, Fourth Report (11 May 2011) UN Doc A/CN.4/643, para.97.49 The draft articles were restructured during the first reading in 2014, so all references to article numbers refer to the 2014 version. See: Statement of the Chairman of the Drafting Committee, Protection of Persons in the Event of Disasters (30 May 2014).50 For discussion of the ILC draft articles, see: Cubie (n 21); Arnold Pronto, ‘Consideration of the Protection of Persons in the Event of Disasters by the International Law Commission’ (2008-2009) 15 ILSA Journal of

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international framework to 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

International and Comparative Law 449; J. Benton Heath, ‘Disasters, Relief, and Neglect: The Duty to Accept Humanitarian Assistance and the Work of the International Law Commission’ (2010-2011) 43 NYU Journal of International Law and Politics 419; Craig Allan and Thérèse O’Donnell, ‘A Call to Alms?: Natural Disasters, R2P, Duties of Cooperation and Uncharted Consequences’ [2012] Journal of Conflict and Security Law1.51 For text of the Commentaries on draft articles 1-5, see: Official Records of the General Assembly, Sixty-fifth Session, Supplement No.10, UN Doc A/65/10, Chapter VII, pp.322-30.52 ibid, Commentary on draft article 1: Scope.53 For text of draft article 2 adopted by the Drafting Committee on first reading, see: UN Doc A/CN.4/L.831 (15 May 2014).54 Valencia-Ospina (n 12), para.12.55 Eduardo Valencia-Ospina, Second Report (7 May 2009) UN Doc A/CN.4/615, para.17.

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Commentary to draft Article 2 likewise references debate 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 5 provides 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

56 Commentary on draft article 2: Purpose (n 51).57 For text of draft articles 5 and 6 adopted by the Drafting Committee on first reading, see: UN Doc A/CN.4/L.831 (15 May 2014).58 For text of the Commentaries on draft articles 6-11, see: Official Records of the General Assembly, Sixty-sixth Session, Supplement No.10, UN Doc A/66/10, Chapter IX, pp.254-70.59 Christopher McCrudden has argued that although the concept of human dignity can be interpreted differently in domestic adjudication systems, it provides an important method for interpreting the concept of human rights: Christopher McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19(4) European Journal of International Law 655.60 Supplement No.10 (n 58), 260-61. For examination of international non-binding texts in disaster settings, see Cubie (n 18).61 The ILC appears keen to link the draft articles to the broad body (or acquis) of international law and practice on humanitarian responses to natural and human-made disasters which includes a wide range of non-binding normative standards. The implications for determining the exact legal obligations for duty-bearers in disaster settings therefore requires further elaboration. See generally: Campbell Mclachlan, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’ (2005) 54(2) International and Comparative Law Quarterly 279.

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The Commission was also keen to point out that a general reference to human rights,

rather than an enumeration of applicable rights, was intended to ensure that all human rights

obligations applicable to States were included.62 As such, the article mirrors the UN’s long-

held position on the indivisibility of all human rights, and avoids entering into a debate on

hierarchies of rights in disaster scenarios.63 Nevertheless, the Commentary highlights that

reference to human rights encompasses both substantive provisions of international human

rights law and an affected State’s right of derogation, as well as noting the differential rights

and responsibilities that various State and non-State actors face in disasters. While

derogations from international human rights obligations may be permissible when the life of a

nation is threatened, the threshold of threat is recognised as being sufficiently high that the

majority of natural disasters would not constitute such a threat.64 Indeed, most natural

disasters such as flooding, hurricanes and landslides do not affect large sections of a country,

but can have devastating impacts at the local level.65 Moreover, only certain rights may be

derogated from, even in a recognised emergency, and Kälin emphasises that restrictions on

protection should not become discriminatory in nature in respect of potentially vulnerable

groups such as women and minorities.66 As the Committee on Economic, Social and Cultural

Rights has stressed: ‘States have a core obligation to take the necessary action to mitigate and

alleviate hunger … even in times of natural or other disasters’.67

The unambiguous focus on human dignity and human rights in the current text of the

ILC draft articles reaffirms that serious human rights implications arise from natural and 62 Statement of the Chairman of the Drafting Committee, Protection of Persons in the Event of Disasters, 20 July 2010.63 Vienna Declaration and Programme of Action, World Conference on Human Rights (1993) UN Doc A/CONF/157/24, Article 5: ‘All human rights are universal, indivisible and interdependent and interrelated … it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms’.64 For example: International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR), Article 4(2); Human Rights Committee General Comment No.29, States of Emergency (Article 4) (31 August 2001) UN Doc CCPR/C/21/Rev.1/Add.11, para.5: ‘If States purport to invoke the right to derogate from the Covenant during … a natural catastrophe … or a major industrial accident, they must be able to justify not only that such a situation constitutes a threat to the life of the nation, but also that all their measures derogating from the Covenant are strictly required by the exigencies of the situation’. Furthermore, ‘not every disturbance or catastrophe qualifies as a public emergency which threatens the life of the nation, as required by article 4, paragraph 1 [of the ICCPR]’, para.3. For general discussion of derogations in international human rights law, see: Sarah Joseph, ‘Human Rights Committee: General Comment 29’ (2002) 2(2) Human Rights Law Review 81; Kälin (n 19) 128-31.65 For specific discussion, see: Emanuele Sommario, ‘Derogation from Human Rights Treaties in Situations of Natural or Man-Made Disasters’ in Andrea de Guttry, Marco Gestri, Gabriella Venturini (eds), International Disaster Response Law (T.M.C. Asser Press, 2012); Amrei Müller, ‘Limitations to and Derogations from Economic, Social and Cultural Rights’ (2009) 9(4) Human Rights Law Review 557.66 Kälin (n 19) 131.67 CESCR, General Comment No.12 (n 16) para.6.

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human-made disasters; while the Commentaries reinforce the interconnection between the

draft articles and the broad body of existing international human rights law. Yet the ILC draft

articles have not yet been concluded, and it is possible changes will be made before they are

finalised. Critical comments by States in the UN General Assembly Sixth Committee

underline the potential risks of dilution should the draft articles be sent forward to a

diplomatic conference for conclusion as a multi-lateral treaty.68 Nevertheless, as shown by the

pronouncements of UN human rights treaty bodies examined in Section 3, a variety of official

bodies have recently acknowledged that human rights law can play an important role in

promoting accountability for the protection of persons in disaster preparation and response.69

2.3. HUMAN RIGHTS ACCOUNTABILITY IN NATIONAL DISASTER PREPAREDNESS

AND RESPONSE

A human rights-based approach to disasters has a number of distinct advantages, in particular

concerning the identification of rights and obligations intended to ensure that individuals and

communities affected are at the centre of any legal framework for protection. Basing

preparations for and responses to major disasters on human rights ensures the applicability of

the entire body of human rights norms and obligations, including States’ obligation to respect,

protect and fulfil all human rights, the existence of non-derogable obligations in emergency

situations, and the principle of non-discrimination and protection of vulnerable groups.

Furthermore, international human rights law recognises both obligations of conduct and of

result – which are intended to ensure that States consistently devote the necessary and

available resources to comply with their international human rights obligations.70 This is

particularly important in disaster preparation and response as States may need to continuously

reassess their strategies for optimum protection.

68 For example: Hungary (UN Doc A/C.6/65/SR.22, para.33 – concerning human dignity); Greece (UN Doc A/C.6/65/SR.22, para.52 – arguing draft Article 6 was of doubtful usefulness); China (UN Doc A/C.6/65/SR.22, para.64 – highlighting the need for flexibility and applicability of derogations to international legal instruments); Russian Federation (UN Doc A/C.6/65/SR.23, para.57 – regarding a State’s right to suspend certain human rights in emergency situations).69 See also: Hesselman (n 21).70 See for example: Towards Freedom from Fear and Want: Human Rights in the Post-2015 Agenda, Thematic Think Piece, Office of the High Commissioner for Human Rights, May 2012, produced for the UN System Task Team on the Post-2015 UN Development Agenda, p.9. While a State may not be responsible for the disaster event, their preparations for and responses to such risks will engage their direct responsibility.

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Another distinct advantage of applying and elaborating the human rights framework in

disaster settings, as noted by the Office of the High Commissioner for Human Rights

(OHCHR), is the fact that human rights-based approaches place a focus on measurable and

enforceable obligations through mechanisms of accountability.71 As argued by the OHCHR,

improved accountability helps strengthen political commitment and justifications for resource

allocations, and improves incentives for the fair delivery of social services.72 This is

particularly true if accountability is understood as encompassing: a) standards which shape

expectations of behaviour; b) the existence of transparent avenues where information is made

available, gathered and assessed about the actual and future conduct of duty-bearers in light of

such standards; and c) the existence of sanctions, incentives, or redress mechanisms.73 The

UN human rights monitoring bodies therefore clearly have a contribution to make in

improving accountability in domestic disaster settings. Moreover, if one considers that

accountability mechanisms need not be purely legal in nature, but can be judicial, quasi-

judicial, administrative, political and/or social74 and perform both proscriptive and

retrospective functions,75 a range of options are presented whereby human rights-based

frameworks and accountability mechanisms can improve oversight and implementation of

human rights norms in disaster situations.

It follows that elaborating and strengthening the application of the UN human rights

framework in disasters not only advances norm setting and domestic recognition of the

relevance and applicability of human rights standards in such settings, but also opens up

international mechanisms of human rights accountability and oversight in the context of

disasters, including the UPR process, State reporting, and individual and inter-State

complaints mechanisms. This is especially important considering that the International

Federation of Red Cross and Red Crescent Societies has highlighted that many States lack the

necessary domestic legal and regulatory frameworks to support large-scale international

71 ibid 6-7.72 ibid.73 For more on the (converging) definitions of the concept of ‘accountability’ and the types of mechanisms and accountability relationships involved, see: Mark Bovens, ‘Analysing and Assessing Accountability: A Conceptual Framework’ (2007) 13(4) European Law Journal 447; Mathias Koenig-Archibugi, ‘Accountability in Transnational Relations: How Distinctive Is It?’ (2010) 33(5) West European Politics 1142; Helen Potts, Accountability and the Right to the Highest Attainable Standards of Health , Human Rights Centre, University of Essex (2008).74 See for example: Potts ibid 13, 17.75 In other words, accountability processes do not merely focus on assessment of conduct after the fact to obtain redress, but also allow for the internalisation of norms and adjustment of conduct through continual dialogue and policy (re)assessment. ibid 13.

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humanitarian assistance operations, resulting in delays and potential denial of life-saving

assistance.76 Furthermore, as Helen Potts has argued, human rights accountability processes

require the incorporation of continuous monitoring into all aspects of policy development and

implementation, while simultaneously promoting the involvement of non-governmental actors

and civil society in this process.77 While these processes take place in various formats at the

international, regional and national level, ultimately it is accountability at the national level

which counts the most.78 Similarly, Paul Hunt, the former UN Special Rapporteur on the

Right to Health, has noted that accountability is a process that ‘helps to identify what works,

so it can be repeated, and what does not, so it can be revised. It is a way of checking that

reasonable balances are fairly struck’.79 Such approaches resonate strongly with process-

oriented understandings of human rights implementation and compliance, such as presented

by Oona Hathaway, who has argued there is little empirical evidence that poorly monitored

and enforced human rights provisions positively influence a State’s human rights practices, as

there are few incentives for signatory governments to match their rhetoric with action.

Professor Hathaway therefore proposes a stronger system of international independent expert

monitoring of the human rights practices of States that sign up to human rights treaties.80

Yet accountability remains challenging in the context of natural and human-made

disasters.81 The invocation of the Convention on Privileges and Immunities of the United

Nations by the UN Secretary-General to avoid potential compensation claims against the UN

for the alleged introduction of cholera by UN peacekeepers following the Haiti earthquake is

a stark reminder of the challenges victims face in seeking individual redress.82 The need to 76 Fisher (n 11) 114; IFRC, Introduction to the Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance (Geneva, 2008), p.3.77 Potts (n 73) 5.78 ibid 17.79 Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (31 January 2008) UN Doc A/HRC/7/11, para.99. For discussion of domestic internalisation of international humanitarian norms, see: Cubie (n 46).80 See: Oona Hathaway, ‘Making Human Rights Treaties Work: Global Legal Information and Human Rights in the 21st Century’ (2003) 31 International Journal of Legal Information 312, 316; Oona Hathaway, ‘Do Human Rights Treaties Make a Difference?’ (2001-2002) 111 Yale Law Journal 1935, 2023.81 For challenges in organising domestic legal empowerment in post-disaster settings, see: Meena Jagannath, Nicole Phillips and Jeena Shah, ‘A Rights-Based Approach to Lawyering: Legal Empowerment as an Alternative to Legal Aid in Post-Disaster Haiti’ (2011-2012) 10 Northwestern Journal of International Human Rights 7. For challenges relating to housing, see: Gould (n 43); Rebecca Barber, ‘Protecting the Right to Housing in the Aftermath of Natural Disaster’ (2008) 20(3) International Journal of Refugee Law 432, in particular 434-41.82 Mark Doyle, ‘UN sued over Haiti cholera epidemic’, BBC News (London, 9 October 2013) <www.bbc.com/news/world-latin-america-24457195> accessed 28 October 2014. See also: Schuller, M., ‘Haiti’s Disaster after the Disaster: The IDP Camps and Cholera’ [December 2010] Journal of Humanitarian Assistance <http://sites.tufts.edu/jha/archives/869> accessed 28 October 2014.

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http://sites.tufts.edu/jha/archives/869

http://www.bbc.com/news/world-latin-america-24457195


clarify the exact rights and obligations at play in disaster settings is therefore evident, and as

such norms are developed their applicability in actual disasters should become more routine

and accepted both nationally and internationally. So while this article is primarily focused on

mainstreaming the human rights implications of disasters within UN human rights bodies, the

fundamental role played by regional and national accountability mechanisms in

complementing such international processes must be recognised. Nonetheless, a focus on

international accountability is justified due to the wide-spread international ramifications

major disasters often have, for example via the involvement of international humanitarian

actors or requests for international assistance, and the potential for large-scale internal and

external displacement. Furthermore, by mainstreaming the human rights implications of

disasters into the UN human rights monitoring mechanisms, all States must equally explain

the measures they have taken to prepare for and respond to disasters within their territory.

Indeed, Elizabeth Ferris recently argued that: ‘much more needs to be done, particularly at the

national level, to ensure that national laws and policies on disaster management (prevention,

response, and recovery) incorporate a human rights perspective’.83 Against this backdrop,

Section 3 provides a brief overview of how selected human rights supervisory bodies have

applied their respective treaties to disaster situations to date, and specific recommendations

they have advanced to improve accountability for human rights violations in concrete disaster

scenarios.

3. EXAMINATION OF SUBSTANTIVE HUMAN RIGHTS PROVISIONS BY

SELECTED UN HUMAN RIGHTS BODIES

One can predict that the evolving recognition of the human rights implications of disasters at

domestic, regional and international levels will mean that human rights supervisory bodies

will increasingly be confronted with questions regarding the protection of persons in the event

of disasters. Moreover, if human rights norms apply, it follows that the UN human rights

bodies are mandated to provide concomitant avenues for monitoring and accountability for

potential breaches of such norms. However, while there has been some initial engagement

with the human rights implications of disasters, the UN human rights system has not yet

tackled the topic in a systematic manner. The HRC Resolution 22/16 calling for research on

83 Elizabeth Ferris, ‘How Can International Human Rights Law Protect Us from Disasters?’ (American Society of International Law, Annual Meeting, 10 April 2014, 21) <http://reliefweb.int/sites/reliefweb.int/files/resources/EFerris%20ASIL%20Human%20Rights%20and%20Disasters%2020140410.pdf> accessed 28 October 2014.

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http://reliefweb.int/sites/reliefweb.int/files/resources/EFerris%20ASIL%20Human%20Rights%20and%20Disasters%2020140410.pdf

http://reliefweb.int/sites/reliefweb.int/files/resources/EFerris%20ASIL%20Human%20Rights%20and%20Disasters%2020140410.pdf


best practices and challenges in the promotion and protection of human rights in post-disaster

and post-conflict situations thus presents a valuable opportunity to consolidate work already

conducted on the issue by the competent UN bodies and mechanisms.84 Nevertheless, it is

notable that the first HRC progress report of August 201485 does not refer to the work of the

ILC on the protection of persons in the event of disasters, nor the detailed analysis of the

international legal obligations of states and non-state actors undertaken by the ILC Special

Rapporteur over the course of his seven reports.86 For a truly coordinated approach within the

UN regarding human rights norms, it is essential that proactive cross-fertilisation of concepts,

research and activities takes place.

The following sections will therefore provide a brief overview of substantive

comments already made by UN human rights treaty bodies regarding disasters. The work of

the UN Charter-based mechanisms, namely the Human Rights Council’s UPR process and

Special Procedures thematic mandates, will then receive attention in Section 4 as an integral

component of our proposals to ensure that the human rights implications of disasters are more

systemically monitored by the UN accountability mechanisms. As the on-going UN treaty

body strengthening process is central to such proposals, a specific focus on the substantive

work of the treaty bodies is particularly worthwhile.

3.1. THE COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

The Committee on Economic, Social and Cultural Rights (CESCR) has played a primary role

in elaborating human rights provisions in disaster settings as the supervisory body of a

primary UN human rights treaty, the International Covenant on Economic, Social and

Cultural Rights (ICESCR). When considering the impact of disasters on human rights, the

CESCR is a logical body to start with since the provisions of the ICESCR apply to all persons

in society, not just women, children or other potentially vulnerable groups. Furthermore, the

ICESCR includes a broad range of human rights directly relevant to disaster situations,

including the right to an adequate standard of living (comprising access to food, clothing, 84 HRC Res 22/16 (n 20). However, it would appear there has been limited engagement from states and UN agencies. In May 2014, the Human Rights Council postponed the first progress report to allow Governments and other stakeholders more time to submit responses (12 May 2014) UN Doc A/HRC/26/40, para 2. By August 2014, only 36 states and no UN agencies had responded to the questionnaire (HRC Progress Report (n 20) paras 4-5).85 HRC Progress Report (n 20).86 See, for example, analysis of humanitarian principles, the concept of human dignity, and the responsibilities of affected states in: Eduardo Valencia-Ospina, Third Report (31 March 2010) UN Doc A/CN.4/629.

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housing, and water)87 and the right to health.88 In addition, the Committee determined early on

that all rights in the ICESCR deserve minimum protection in the form of ‘core obligations’

without which the raison d’être of the ICESCR would be lost. This means that any State Party

in which a significant number of individuals is deprived of ‘minimum essential levels’ of

socio-economic rights, such as ‘essential foodstuffs, essential primary health care, basic

shelter and housing, or the most basic forms of education is, prima facie, failing to discharge

its obligations under the Covenant’.89 Indeed, as noted above, the CESCR has explicitly

affirmed that States have ‘a core obligation to take the necessary action to mitigate and

alleviate hunger … even in times of natural or other disasters’.90 Moreover, the CESCR has

determined that if a State cannot fulfil its minimum core obligations, including in times of

disaster, there may be an obligation to accept or request aid from other States.91 Such a

determination is particularly relevant in the context of determining the legal obligations

within and between States for the provision of humanitarian assistance in times of large-scale

disasters.

In regard to specific rights, the CESCR has noted inter alia, an obligation to take steps

to ensure that victims of disaster and persons living in disaster-prone areas are provided with

safe and sufficient water,92 and that priority should be given to ‘the provision of international

medical aid, distribution and management of resources, such as safe and potable water, food

and medical supplies, and financial aid … to the most vulnerable or marginalized groups of

the population’.93 The CESCR has furthermore indicated that the right to health includes the

creation of ‘a system of urgent medical care in cases of accidents, epidemics and similar

health hazards, and the provision of disaster relief and humanitarian assistance in emergency

87 ICESCR, Article 11, as elaborated in: CESCR General Comments No.12 and 15 (n 16).88 ICESCR, Article 12, as elaborated in: CESCR General Comment No.14 (n 16).89 See: CESCR, General Comment No.3, The Nature of States Parties’ Obligations, UN Doc E/1991/23 (14 December 1990) para.10; CESCR General Comment No.12 (n 16) paras.6, 13, 15, 17, 38-39; CESCR General Comment No.14 (n 16) paras.16, 40, 45.90 CESCR General Comment No.12 (n 16) para.6.91 CESCR General Comment No.12 (n 16) paras.15, 17. It is outside the scope of this paper to examine how disasters may impede States from complying with their minimum core obligations. For discussion of international obligations to accept assistance, see: Craig Allan and Thérése O’Donnell, ‘An Offer You Cannot Refuse? Natural Disasters, the Politics of Aid Refusal and Potential Legal Implications’ (2013) 5(1) Amsterdam Law Forum 36.92 CESCR General Comment No.15 (n 16) para.16.93 CESCR General Comment No.14 (n 16) paras.40, 65.

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situations’,94 while under the right to housing, victims of disaster and people living in disaster

prone areas ‘should be ensured some degree of priority in the housing sphere’.95

The CESCR has equally considered the importance of human rights in disaster

prevention and preparedness, both in General Comments and in Concluding Observations.

This reflects the Inter-Agency Standing Committee’s view that the negative impacts on

human rights enjoyment in the wake of a disaster often ‘do not arise from purposeful policies

but are the result of inadequate planning and disaster preparedness, inappropriate policies and

measures to respond to the disasters, or simple neglect’.96 Specifically, the CESCR’s

Concluding Observations on El Salvador noted the need to ensure ‘effective preventive

measures’ in disaster situations so that housing is constructed ‘in accordance with the

standards for resisting earthquakes and cyclones, and to adopt a national territorial

classification plan, avoiding construction in areas prone to natural disasters’.97 Similarly,

CESCR exhorted Morocco ‘to provide assistance to earthquake victims, particularly women

and children, and to take preventive action to ensure that housing is built in accordance with

the rules applicable to earthquake-prone areas’.98 Moreover, CESCR has considered the

human rights implications of financial preparedness for disasters, for example in the context

of the ‘right to social security’.99 CESCR General Comment No.19 notes that State Parties

should consider establishing insurance schemes, such as ‘crop or natural disaster insurance’,

which are accessible for (poor) victims after a disaster.100 Specifically, it highlights that

special attention should be given to ensuring ‘the social security system can respond in times

of emergency, for example during and after natural disasters, armed conflict and crop failure’

by establishing ‘non-contributory schemes or other social assistance measures to provide

support to those individuals and groups who are unable to make sufficient contributions for

their own protection’.101 Yet while it is clear that the Committee recognises various rights in

the ICESCR require particular action on the part of States in the context of disasters and has

started to clarify obligations in this regard, it is noticeable it has not yet provided specific

94 ibid para.16.95 CESCR General Comment No.4 (n 16).96 IASC, Operational Guidelines 2011 (n 39) 2. See also: Hesselman (n 21) 109, 113; Kälin (n 19) 124-25.97 CESCR, Concluding Observations El Salvador (2006) UN Doc E/C.12/SLV/CO/2, para.39.98 CESCR, Concluding Observations Morocco (2006) UN Doc E/C.12/MAR/CO/3, paras.27, 51.99 ICESCR, Article 9.100 CESCR, General Comment No.19, The Right to Social Security (23 November 2007) UN Doc E/C.12/GC/19, para.28.101 ibid para.50.

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guidance on the human rights implications of disasters in the form of a dedicated General

Comment.

3.2. THE HUMAN RIGHTS COMMITTEE

Meanwhile, the Human Rights Committee’s supervision of the International Covenant on

Civil and Political Rights explicitly includes the right to life through Article 6. Just as the

Committee on Economic, Social and Cultural Rights monitors the implementation of the right

to an adequate standard of living, the Human Rights Committee (HRCtee) must consider the

implications of Article 6 in both pre-disaster preparedness, such as the establishment of

proper evacuation plans, and in post-disaster emergency response. While it has been silent on

the matter in its General Comments, the HRCtee has considered the issue in State reports,

expressing concern, for example, in the US preparations for and response to Hurricane

Katrina. Responding to concerns that poor people, in particular African-Americans, were

disproportionally disadvantaged by the rescue and evacuation plans, the HRCtee required that

the US review its practices and policies in relation to ‘disaster prevention and preparedness,

emergency assistance and relief measures’, bringing it in line with requirements of the right to

life and the prohibition of direct or indirect discrimination.102 Following the 2004 Indian

Ocean Tsunami, the HRCtee expressed concern regarding undocumented migrants in

Thailand, holding that humanitarian assistance should be provided effectively to all victims of

the disaster without discrimination, and regardless of their legal status.103 Meanwhile in 2000

the HRCtee reprimanded North Korea for ‘the lack of measures by the State Party to deal with

the food and nutrition situation … and the lack of measures to address, in cooperation with

the international community, the causes and consequences of the drought and other natural

disasters which seriously affected the country’s population in the 1990s’.104

3.3. OTHER TREATY BODIES: ANTI-DISCRIMINATION AND THE PROTECTION OF SPECIFIC

GROUPS

In addition to the CESCR and the HRCtee, the UN human rights treaty bodies supervising the

rights of specific groups in society, such as women, children, disabled persons or those facing

102 HRC, Concluding Observations on the United States (2006) UN Doc CCPR/C/USA/CO/3/Rev.1, para.26. See also: Sirkin (n 44).103 HRC, Concluding Observations Thailand (2005) UN Doc CCPR/CO/84/THA, para.23.104 HRC, Concluding Observations DPRK (2000) UN Doc CCPR/CO/72/PRK, para.12.

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racial discrimination, have equally recognised the implications of human rights for disaster

situations. For example, the Committee against Racial Discrimination (CRD), which monitors

the International Convention on the Elimination of all forms of Racial Discrimination, also

expressed concern regarding Hurricane Katrina in the US, noting the slow and inadequate

protection of the right to housing after the hurricane, especially for low-income African-

Americans. It recommended the US increased efforts to facilitate the return of displaced

persons to their homes, or if not feasible to guarantee access to adequate and affordable

housing, if possible in the place of habitual residence.105 Additionally, the US was called upon

to ensure every effort towards ‘genuine consultation and participation of persons displaced by

Hurricane Katrina in the design and implementation of all decisions affecting them’.106

Similarly, the Committee on the Elimination of all Forms of Discrimination Against

Women (CEDAW Committee) has pronounced several times on issues relating to women’s

access to assistance and protection in disaster situations.107 For example, it noted that

Indonesian female tsunami victims had not had their needs for (reproductive) health, clothing,

housing and safety met, while also expressing concern that women-headed households faced

‘discriminatory treatment in trying to get access to housing or food aid provided to male

heads of the households’.108 The CEDAW Committee urged Indonesia to ‘eliminate all forms

of discrimination against women with respect to access to housing and food aid in emergency

and natural disaster situations’.109 In addition, it has expressed concern about the impact of

tsunamis and earthquakes in Chile on the socio-economic position of women in rural areas,

arguing that reconstruction plans should sufficiently take into account a gender perspective.110

Of note, the UN Commission on the Status of Women, a functional commission of the

UN Economic and Social Council (ECOSOC), has concluded a specific Resolution on Gender

Equality and the Empowerment of Women in Natural Disasters.111 In addition to recognising

the vital role that women play in the prevention and response to natural disasters, the

Resolution explicitly urges Governments to: ‘Ensure the full enjoyment by women and girls 105 CERD, Concluding Observations United States of America (2008) UN Doc CERD/C/USA/CO/6, para.31.106 ibid.107 For discussion of the substantive human rights implications of disasters for women, see: Ferris (n 83) 10-16.108 CEDAW, Concluding Observations Indonesia (2007) UN Doc CEDAW/C/IDN/CO/5, para.38.109 ibid para.39.110 CEDAW, Concluding Observations Chile (2012) UN Doc CEDAW/C/CHL/CO/5-6, paras.38-39.111 The Resolution was proposed by Japan, and was jointly sponsored by 49 other states. See: Japan: draft resolution, Gender Equality and the Empowerment of Women in Natural Disasters (6 March 2012) UN Doc E/CN.6/2012/L.4.

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of all human rights in every phase of disaster risk reduction (prevention, mitigation and

preparedness), response and recovery’.112

Meanwhile, the Committee on the Rights of the Child (CRC) has highlighted that

effective protection of children could include: the implementation of disaster preparedness in

school curricula;113 the development and implementation of action plans or strategies on

assistance and protection;114 and the setting up of ‘strategic budgetary lines’ protecting

vulnerable and disadvantaged children ‘even in situations of economic crisis, natural disasters

or other emergencies’.115

Finally, the recently established Committee on the Rights of Persons with Disabilities

provides an interesting precedent, as the Convention on the Rights of Persons with

Disabilities includes an explicit provision in Article 11 for State Parties to take ‘all necessary

measures to ensure the protection and safety of persons with disabilities in situations of risk,

including situations of armed conflict, humanitarian emergencies and the occurrence of

natural disasters’.116 Furthermore, Article 11 explicitly references the applicability of

international humanitarian law and international human rights law in situations of risk and

humanitarian emergency.117 The Committee has therefore required State Parties to report

measures taken to ensure the protection and safety of disabled persons, including ‘measures

taken to include persons with disabilities in national emergency protocols’, and also particular

measures taken ‘to ensure that humanitarian aid relief is distributed in an accessible way to

people with disabilities caught in humanitarian emergency, in particular measures taken to

ensure that sanitation and latrine facilities in emergency shelters and refugee camps are

112 UN Commission on the Status of Women, Res 56/2, Gender Equality and the Empowerment of Women in Natural Disasters (March 2012). UN Commission on the Status of Women, Report on the fifty-sixth session (14 March 2011, 27 February – 9 March and 15 March 2012), Economic and Social Council, Official Records, Supplement No. 7 (2012) UN Doc E/CN.6/2012/16, p.9.113 For example: CRC, Concluding Observations Djibouti (2009) UN Doc CRC/C/DJI/CO/2, para.63.114 CRC, Concluding Observations The Philippines (2009) UN Doc CRC/C/PHL/CO/3-4, para.60(d).115 This is a standard issue raised by the Committee, see: CRC, Concluding Observations Madagascar (2012) UN Doc CRC/C/MDG/CO/3-4, para.18; CRC, Concluding Observations Canada (2012) UN Doc CRC/C.CAN/CO/3-4, para.17; CRC, Concluding Observations Myanmar (2012) UN Doc CRC/C/MMR/CO/3-4, para.18(c).116 Convention on the Rights of Persons with Disabilities (CRPD), 13 December 2006, 2515 UNTS 3. See also: Report of the Committee on the Rights of Persons with Disabilities to the General Assembly (2011) UN Doc A/66/55, para.31.117 CRPD, Article 11 states: ‘States Parties shall take, in accordance with their obligations under international law, including international humanitarian law and international human rights law, all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters’.

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available and accessible for persons with disabilities’.118 Thus, the Committee has expressed

clear ideas on the consequences of the new treaty for the treatment of disabled persons in

emergencies. Moreover, for a brief period, the Committee established an informal working

group for monitoring the protection of persons with disabilities in disasters.119 In a relatively

short time span, this led to statements regarding earthquakes and tsunamis in Haiti, Chile, and

Qinghai province in China.120 Regrettably, the reason for the abolition of the special working

group only a year after its commencement is not evident, but further information on the

rationale for establishment and subsequent abolition of the group could provide useful

insights into the benefits and challenges for UN bodies monitoring the human rights

implications of disasters and the potential for institutionalisation of such approaches across

the UN human rights monitoring system.

4. PROPOSALS FOR SYSTEMIC OVERSIGHT OF HUMAN RIGHTS IN DISASTERS

4.1. REFORM OF THE UN HUMAN RIGHTS SYSTEM

Allehone Mulugeta Abebe has noted that prior to the Haiti earthquake, no session of the

former Commission on Human Rights or the new Human Rights Council (HRC) exclusively

examined the question of human rights during disasters.121 However, considering the broader

discussions on the effective operation of the HRC and UPR process and on-going UN treaty

body strengthening process, the forthcoming HRC research on the human rights implications

of disasters122 provides an opportunity to examine the need for more substantive coordination

and incorporation of human rights protection in disaster prevention, preparedness and

response, and how these can link to the overall improvement of international human rights

mechanisms. For despite engagement by certain treaty monitoring bodies and thematic

mandate-holders, and efforts to improve the operational responses to humanitarian crises

118 Committee on the Rights of Persons with Disabilities, Guidelines on Treaty-Specific Document to be Submitted by States Parties under Article 35, paragraph 1, of the Convention on the Rights of Persons with Disabilities (18 November 2009) UN Doc CRPD/C/2/3, p.9.119 Report of the CRPD (n 116) para.24. See also: ‘Committee on the Rights of Persons with Disabilities concludes fifth session’, UN Press Release, 15 April 2011 <www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=10945&LangID=E> accessed 28 October 2014.120 Available at <www.ohchr.org/en/NewsEvents/Pages/NewsSearch.aspx?SID=Disability&NTID=STM> accessed 28 October 2014.121 Allehone Mulugeta Abebe, ‘Special Report – Human Rights in the Context of Disasters: The Special Session of the UN Human Rights Council on Haiti’ (2011) 10 Journal of Human Rights 99, 103.122 HRC Res 22/16 (n 20).

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elsewhere within the UN, to date there has not been any coordinated attempt to understand

how best to respect, protect and fulfil the human rights of victims of natural and human-made

disasters across the various components of the UN system.123

Any proposal for improved systemic monitoring of human rights issues in disasters

fundamentally needs to take into account the broader discussions on reform within the UN

human rights system. Although the Commission on Human Rights was abolished to create the

Human Rights Council in 2005, and led to the subsequent establishment of the Universal

Periodic Review mechanism, reform of the various treaty-based supervisory mechanisms into

a ‘unified treaty standing body’ were rejected during that same period.124 Yet treaty bodies

and States Parties currently face considerable challenges in fulfilling their reporting and

supervisory duties, not least the need for substantive and procedural coordination between the

nine dedicated Human Rights Treaty Supervisory Bodies and the Subcommittee on the

Prevention of Torture.125 The system continues to expand, with the conclusion of the UN

Convention on the Rights of Persons with Disabilities in 2006 and the adoption of its Optional

Protocol establishing an individual complaints procedure,126 and the recent entry into force of

the Optional Protocol to the ICESCR, which likewise opens up new avenues for complaints

regarding violations of socio-economic rights.127 The past few years have therefore seen on-

going discussion and proposals for treaty body reform and strengthening. A significant

impetus came from the November 2009 ‘Dublin meeting’ of current and former UN treaty

body members, which led to a series of follow-up thematic sessions involving key actors

123 The current focus on the impact of disasters also receives impetus from discussions on climate change and disaster risk reduction in the context of the post-2015 Sustainable Development Goals. See for example: UN Technical Support Team, ‘Issues Brief: Climate Change and Disaster Risk Reduction’, 4 November 2013 <http://sustainabledevelopment.un.org/content/documents/2301TST%20Issue%20Brief_CC&DRR_Final_4_Nov_final%20final.pdf> accessed 28 October 2014.124 For discussion, see: Michael O’Flaherty and Claire O’Brien, ‘Reform of UN Human Rights Treaty Monitoring Bodies: A Critique of the Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body’ (2007) 7 Human Rights Law Review 141.125 Rosalyn Higgins identified the risk of proliferation of treaty bodies as early as 1989. See: Rosalyn Higgins, ‘The United Nations: Still a Force for Peace’ (1989) 52 Modern Law Review 1, 9. For a recent analysis of the treaty body reform process, see: Françoise Hampson, ‘An Overview of the Reform of the UN Human Rights Machinery’ (2007) 7 Human Rights Law Review 7, in particular 12-14. For an overview of the human rights treaty bodies and their work, see: <www2.ohchr.org/english/bodies/treaty/index.htm> accessed 28 October 2014.126 CRPD (n 116); Optional Protocol to the Convention on the Rights of Persons with Disabilities (6 December 2006) UN Doc A/61/611.127 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (10 December 2008) UN Doc A/63/435. For discussion of the effectiveness of individual complaints mechanisms within the UN supervisory system, see: Arne Vandenbogaerde and Wouter Vandenhole, ‘The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: An Ex Ante Assessment of its Effectiveness in Light of the Drafting Process’ (2010) 2 Human Rights Law Review 207.

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including national human rights institutions and non-governmental organisations.128

Subsequently, in 2012 the UN High Commissioner for Human Rights, Navanethem Pillay,

produced a synthesis report which advanced a wide range of primarily procedural proposals to

streamline and simplify the working methods of the various bodies.129 Meanwhile, in a

parallel process, a Cross-Regional Group of States pushed for an inter-governmental process

that allowed for greater input by States into the reform and strengthening process. These two

processes led to the recent adoption of General Assembly Resolution 68/268,130 which

contains important changes to the working methods and structures of the UN Treaty Body

system which will come into force on 1 January 2015.131

Yet despite these broader reform and strengthening initiatives, the divergent and ad

hoc approach taken to date by the treaty bodies to the issue of disasters (and other cross-

cutting issues) highlights the need for a more systematic and coordinated approach to the

monitoring of and accountability for the substantive human rights implications of disasters. It

is suggested below that rather than creating a dedicated human rights treaty and monitoring

body for disasters, a State’s preparations for and responses to natural and human-made

disasters could be examined more comprehensively within existing mechanisms, while

benefiting from coordinated efforts between the UN Charter and Treaty-based mechanisms.132

Considering the challenges of thematic proliferation and the need for consistency across the

UN human rights system, this potentially represents a test-case for the UN regarding how to

effectively embrace cross-cutting issues. To successfully mainstream ‘human rights and

disasters’, the UN human rights bodies would need to jointly draw from the emerging

normative system of international law and practice on humanitarian responses to crises, as

well as identify procedural avenues for cooperation in monitoring efforts, in line with the

128 Information on the treaty strengthening process is available at: <www.ohchr.org/EN/HRBodies/HRTD/Pages/TBStrengthening.aspx> accessed 28 October 2014. See also: Michael O’Flaherty, ‘Reform of the UN Human Rights Treaty Body System: Locating the Dublin Statement’ (2010) 2 Human Rights Law Review 319.129 Navanethem Pillay, Strengthening the United Nations Human Rights Treaty Body System: A Report by the United Nations High Commissioner for Human Rights, June 2012. Of note, the report only refers to disasters in the context of how they can impact a State’s ability to submit timely reports, 25, 83.130 UNGA Res 68/268 (n 25).131 For discussion, see: Broecker and O’Flaherty (n 25).132 For discussion of the inter-relationship between the various UN human rights bodies, see: Nigel Rodley, ‘United Nations Human Rights Treaty Bodies and Special Procedures of the Commission on Human Rights – Complementarity or Competition?’ (2003) 25(4) Human Rights Quarterly 882.

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respective mandate of each body, while remaining cognisant of the need to avoid unnecessary

duplication of work.133

The following paragraphs therefore provide a series of proposals as to how the UN

human rights supervisory system as a whole can provide improved oversight and

accountability for the protection of human rights norms in disasters. Most notably, it is argued

that all the various UN human rights supervisory mechanisms can play a distinct role in

elaborating norms and providing fora where conduct can be assessed in both a proscriptive

and retrospective manner. Moreover, since some UN accountability mechanisms, such as the

UPR or State reporting procedures, focus on assessing national situations more generally,

rather than individual rights violations, such mechanisms can be useful in addressing

overarching disaster prevention, preparation and response issues, while simultaneously

exposing systemic problems. As disasters impact the lives of many individuals concurrently,

although not all groups and individuals in an equal manner,134 the various UN accountability

processes can play distinct roles in offering avenues for continuous (re)assessment of a State’s

conduct and policies against the backdrop of international human rights law. Such an

approach recognises the need to first ensure institutional acceptance of the human rights

implications of disasters within the UN system,135 followed by substantive examination of the

specific human rights issues that may be raised before the various UN human rights bodies

concerning both past violations and future risks.

Key to all the proposals set out below is the observation that violations of human

rights in disasters generally result from an inability of the affected State to respond

effectively, either due to a lack of adequate preparation for a particular hazard or due to the

severity of the event. Therefore, a State’s preparations for known or expected risks are likely

to be a major aspect of any examination of potential violations of human rights in disasters.

The European Court of Human Rights has already stressed a State’s responsibility to

133 For example by adjusting the content requirements for the Common Core Document or introducing common reporting guidelines. For discussion of the twin processes of systemic integration and fragmentation of international law, see: Mclachlan (n 61) 282-86.134 For example the (unintended) discriminatory effect of an evacuation plan based on private car ownership in New Orleans in the face of Hurricane Katrina.135 By way of comparison, the importance of the OHCHR’s 2009 report on climate change and human rights provided a key impetus for the international recognition of the linkages between climate change and human rights. The current HRC research into human rights and disasters may play a similar role. For discussion, see: Margaretha Wewerinke, ‘The Role of the UN Human Rights Council in Addressing Climate Change’ (2014) 8(1) Human Rights and International Legal Discourse 10.

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undertake preventative measures to reduce the risk of disasters occurring,136 which reflects an

approach based on a ‘full cycle of protection’.137 It follows that a key role of the UN in

promoting the protection of persons in the event of disasters is to support and provide

guidance to States to ensure that they fully appreciate the human rights implications of

disasters both before and after an event occurs.138 Nevertheless, one cannot discount specific

situations whereby a State deliberately and actively denies a portion of its population

protection and assistance in a disaster, as occurred in Myanmar following Cyclone Nargis in

2008 or in North Korea during the famines of 1997-8.139 In such instances, the UN human

rights monitoring and enforcement system must be robust enough to promote compliance with

human rights norms and hold States accountable for actions or omissions which result in

rights violations, while also elaborating the normative frameworks against which conduct can

be tested and potentially challenged. As UN agencies, the ILC and non-governmental

humanitarian actors have already reaffirmed the applicability and importance of human rights

in disasters, the key question is how to move the institutional human rights framework

towards a more systematic inclusion of the victims of disasters within existing monitoring and

enforcement mechanisms, so that victims can benefit, frameworks of protection be clarified

and strengthened, and accountability and oversight be increased.

4.2. THE UN HUMAN RIGHTS COUNCIL

Recent moves by the Human Rights Council (HRC), such as the special session to discuss a

human rights approach to the Haitian earthquake recovery process,140 and the research on

‘human rights mainstreaming in relief, recovery and reconstruction efforts’ in post-disaster

situations,141 highlight the increasing awareness of the human rights implications of disasters

within the HRC. Yet even if there is a growing institutional acceptance of the issue, it is still

necessary to examine where within the UN human rights system, including within the Human

Rights Council, the protection of victims of natural disasters should most appropriately be

addressed.

136 See: ECtHR, Oneryildiz v. Turkey (n 40); ECtHR, Budayeva and others v. Russia (n 40).137 Hesselman (n 21).138 Of note, the ILC Special Rapporteur’s Sixth Report in 2013 focused on disaster risk reduction, the status of the principle of prevention in general international law, and State obligations in regard to international cooperation and domestic preventative measures. See: Eduardo Valencia-Ospina, Sixth Report (3 May 2013) UN Doc A/CN.4/662.139 Allan and O’Donnell (n 91) 38. See also: Allan and O’Donnell (n 50).140 For discussion see: Abebe (n 121).141 HRC Res 22/16 (n 20).

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4.2.1. Reporting via the Universal Periodic Review Process

Following the establishment of the HRC in 2005, the Universal Periodic Review (UPR)

process142 created a system whereby all UN member States are obliged to undergo regular

examination by other States of measures they have undertaken to fulfil their international

human rights obligations and commitments. Rising from the ashes of the discredited

Commission on Human Rights, the UPR system has been described as a ‘breath of fresh air’

and ‘genuinely innovative, positive, and encouraging’;143 while governments have been keen

to stress that the UPR is an ‘additional tool for human rights monitoring, intended to

complement and not duplicate the work of the treaty bodies and the special procedures’.144

The UPR involves a three-stage process over a period of 4½ years, which commences with

the review of a State, followed by implementation of the recommendations made during the

review, before concluding with an assessment of the implementation measures taken by the

State during their next UPR review. So far, one full cycle has been completed, with all 193

UN member States presenting reports and undergoing examination between 2008 and 2011.145

Considering the wide range of potential human rights violations arising from natural

and human-made disasters, it would be appropriate for a State’s actions pre- and post-

disasters to be examined as part of the country-specific UPR process. Nevertheless, the extent

of devastation to Haiti’s national institutions actually led the HRC to postpone their planned

UPR report scheduled for 2010;146 which demonstrates potential limitations of the UPR

process for ensuring immediate accountability. Yet an advantage of the 4½ year nature of the

UPR process is precisely because it reflects the cyclical nature of disasters. As noted by

Daniel Farber, the disaster cycle requires States to commence preparation for the next disaster

142 Established by UNGA Res 60/251 (15 March 2006).143 John Carey, ‘The UN Human Rights Council: What Would Eleanor Roosevelt Say?’ (2008-2009) 15 ILSA Journal of International and Comparative Law 459, 460. See also: Felice Gaer, ‘A Voice Not an Echo: Universal Periodic Review and the UN Treaty Body System’ (2007) 7 Human Rights Law Review 109.144 See: UN Human Rights Council, 8th Session, Universal Periodic Review, Report of the Working Group on the Universal Periodic Review, Netherlands (16 June 2008) UN Doc A/HRC/8/31/Add.1, para.9. See also: UN Human Rights Council, 8th Session, Universal Periodic Review, Report of the Working Group on the Universal Periodic Review, Tonga (5 June 2008) UN Doc A/HRC/8/48, para.5: ‘the UPR process is one that should ensure complementarity with existing mechanisms so as to avoid any duplication’.145 For analysis of the UPR system and recommendations made to 66 States during the first UPR cycle, see: Universal Periodic Review: On the Road to Implementation, UPR Info (Geneva, 2012). However, Israel did not attend its second UPR review in January 2013. See: UPR Info, Israel Absent from its Own UPR, 30 January 2013 <www.upr-info.org/en/news/israel-absent-its-own-upr> accessed 28 October 2014.146 See: Abebe (n 121).

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event immediately after a disaster strikes.147 Therefore, reporting on disasters that occur

within a State during the UPR cycle would help to promote awareness of actions needed to

minimise the risk of human rights violations in future events, while States would subsequently

report back on implementation measures undertaken following recommendations made in

previous cycles of the UPR process.

However, to reflect the objectives of non-duplication and coherence within the UPR

process, it is important that a State’s reporting of actions taken to protect human rights in

disasters during their UPR examination should complement reporting under the relevant

individual human rights treaties148 and note should be taken of relevant General Comments

and Concluding Observations between the HRC and the respective treaty bodies. As the UPR

mechanism is already arranged so that the work of other UN accountability mechanisms feed

into the process, it is proposed that disaster preparedness and response are given specific

attention both within a State’s national UPR report, and the compilation and summary reports

prepared by the UPR Secretariat, thereby ensuring that observations of States, UN agencies

and civil society are all included. Moreover, the requirement for all States without exception

to be examined on their disaster preparedness and response activities through the cyclical

UPR process would help promote the universal and indivisible application of human rights

law for victims of disasters, regardless of the specific human rights treaties that each member

State is a party to, while also allowing for urgent systemic issues to be highlighted on a

cyclical basis.

4.2.2. Examination via the Special Procedures

To support the work of States and the Human Rights Council in the UPR process, use could

also be made of the thematic special procedures, with the establishment of an Independent

Expert or Special Rapporteur on the Human Rights Implications of Disasters.149 While

mindful of the impact of proliferation on the special procedures system, which already

147 Farber (n 10).148 For example, the implications of disasters for children should also be reported under the procedures set out in the Convention on the Rights of the Child (CRC), 20 November 1989, 1577 UTS 3.149 Such a thematic mandate could fall within the group Hurst Hannum classified as ‘broader subjects that may not yet be specifically articulated in a particular treaty or that encompass concerns that go beyond implementation of a specific right’. Hurst Hannum, ‘Reforming the Special Procedures and Mechanisms of the Commission on Human Rights’ (2007) 7 Human Rights Law Review 73, 76.

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incorporates 38 thematic and 14 country-specific mandates,150 and the limitations of the

existing system;151 considering both the huge numbers of people affected by disasters each

year152 and the potentially serious violations of human rights which can occur during a

disaster, it would be appropriate to provide a central focal point within the UN human rights

monitoring system to ensure the consistent application and awareness of the human rights

implications of disasters. Indeed, the human rights implications of disasters fall within all four

of the purposes identified by Hurst Hannum that may be served by the creation of a specific

thematic focus.153 Furthermore, as noted by the OHCHR,154 the potential for increased

frequency and intensity of hydro-meteorological disasters arising from climate change and the

attendant human rights implications reinforces the need for such a focus. One can foresee

such an Independent Expert or Special Rapporteur acting in a complementary fashion to the

ILC Special Rapporteur on the Protection of Persons in the Event of Disasters, and

subsequently providing a targeted focus on the promotion of human rights in disasters once

the ILC draft articles have been completed.

Alternatively, relevant pre-existing thematic mandates within the HRC (which include

the rights to food, adequate housing, health, the human rights of internally displaced persons,

and the human rights obligations for a healthy and sustainable environment) could be

encouraged to explicitly examine the human rights implications of States’ humanitarian

preparations for and responses to natural and human-made disasters.155 A prime example is

the Special Rapporteur on Adequate Housing who has already examined the right to housing 150 For example, many civil society organisations have called for the establishment of a Special Procedure mandate-holder on climate change and human rights. For discussion, see: Wewerinke (n 135); Dug Cubie, ‘Promoting Dignity for All: Human Rights Approaches in the Post-2015 Climate Change, Disaster Risk Reduction and Sustainable Development Frameworks’ (2014) 8(1) Human Rights and International Legal Discourse 36. For details of the current special procedures, see: <www.ohchr.org/EN/HRBodies/SP/Pages/Themes.aspx> accessed 28 October 2014.151 See for example: Surya Subedi, ‘Protection of Human Rights through the Mechanism of UN Special Rapporteurs’ (2011) 33(1) Human Rights Quarterly 201, 216-18; Jeroen Gutter, ‘Special Procedures and the Human Rights Council: Achievements and Challenges Ahead’ (2007) 7 Human Rights Law Review 93.152 As noted by the International Monetary Fund, over 450 million people were affected by 700 natural disasters during 2010 and 2011. See: Nicole Laframboise and Boileau Loko, ‘Natural Disasters: Mitigating Impact, Managing Risks’, IMF Working Paper (October 2012), WP/12/245, at p.4.153 Namely: (i) protection of individual victims; (ii) promotion of rights already guaranteed by treaty; (iii) studies of potential new rights or approaches; (iv) reinforcing concern for issues considered in non-human-rights UN forums. Hannum (n 149) 78-79.154 Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights (15 January 2009) UN Doc A/HRC/10/61, para.8.155 Consider for example the explicit references to concerns about the impacts of disasters on rights enjoyment in the mandates of the Special Rapporteurs on the: right to food, HRC Res 13/4 (14 April 2010) UN Doc A/HRC/RES/13/4, p.2; right to adequate housing, HRC Res 6/27 (14 December 2007), UN Doc A/HRC/RES/6/27, p.3; the rights of internally displaced persons, HRC Res 14/6 (23 June 2010) UN Doc A/HRC/RES/14/6, pp.2-3.

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in disaster response and recovery,156 post-disaster re-housing,157 and following extreme

weather events.158 In turn, the Special Rapporteur’s work has led the HRC to encourage States

and relevant actors to respect, protect and fulfil the right to adequate housing as a component

of the right to an adequate standard of living in disaster risk reduction, prevention and

preparedness initiatives, as well as in all phases of disaster response and recovery.159

Similarly, the mandate of the Special Rapporteur on the Human Rights of Internally

Displaced Persons explicitly includes those displaced by natural disasters.160 Including the

human rights implications of disasters within existing thematic mandates could therefore help

promote the mainstreaming of human rights in disasters and would not require the creation of

a new thematic mandate within the HRC; although without additional funding such a move

would further stretch the limited resources and time for consideration already available to the

existing thematic mandates.161 Moreover, the thematically limited mandate of some special

procedure mandate-holders may encourage a fragmented, rather than systemic, approach,

while the type and extent of work they engage in may limit their involvement or success in

tackling a cross-cutting issue. In this sense, a dedicated Independent Expert or Special

Rapporteur on Human Rights and Disasters, with a specific mandate, may be more effective

and appropriate.

4.3. THE UN HUMAN RIGHTS TREATY BODIES

In addition to inclusion within the UPR process and the HRC special procedures, and against

the backdrop of the ILC draft articles and HRC research, the separate UN Human Rights

Treaty Bodies can pave the way for more comprehensive protection of victims of disasters by

explicitly considering the specific rights and responsibilities applicable in disaster settings

within their mandates under existing international human rights law. As noted in Section 3, 156 UN Doc A/66/270 (5 August 2011).157 UN Doc A/HRC/16/42 (20 December 2010).158 UN Doc A/64/255 (6 August 2009). The HRC has encouraged other relevant Special Procedure mandate-holders to likewise give consideration to the issue of climate change within their respective mandates. See: HRC Res 10/4 (12 May 2009) UN Doc A/HRC/10/L.11.159 HRC Res 19/4 (3 April 2012) UN Doc A/HRC/19/4.160 For example, during a mission to the Maldives in July 2011, the Special Rapporteur specifically examined ‘the achievement of durable solutions as regards persons internally displaced as a result of the 2004 tsunami, as well as issues related to potential internal displacement in the future due to the effects of climate change and other factors’. See: Addendum to the annual Report of the Special Rapporteur on Internally Displaced Persons, Mr. Chaloka Beyani (30 January 2012) UN Doc A/HRC/19/54/Add.1.161 Special Procedures mandate-holders have already expressed concern regarding the lack of a common strategy and resources in addressing the cross-cutting issue of climate change in an effective and systematic manner. See: Human Rights Council, Human Rights Bodies and Mechanisms: Note by the UN High Commissioner for Human Rights (22 July 2009) UN Doc A/HRC/12/47, para.41.

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several UN treaty bodies have already made reference to the human rights implications of

disasters within both country specific recommendations and in General Comments. However,

to ensure a more consistent and unified approach, States could be specifically requested to

report on their efforts in respect of disaster preparedness and response activities.

To reduce the burden on States in their reporting requirements, description of the

domestic structures and laws relating to the preparation for and responses to disasters could be

included in the Common Core Document supplied to all UN treaty bodies,162 while additional

issues could then be contained in treaty-specific documents in respect of particular rights or

disasters that occur during reporting periods. Furthermore, specific questions regarding

disaster preparedness and response could be included by each Committee in the list of issues

sent to each State prior to examination by the Committee. Of note, the High Commissioner

for Human Rights’ report on strengthening the treaty body system stressed the importance of

the use and design of documents such as the Core Common Document and harmonised

reporting guidelines in mainstreaming human rights and effectively communicating cross-

cutting themes across the bodies, while reducing unnecessary duplication for State Parties

within the reporting system.163 Another solution to promote substantive and procedural

coherency and streamlining across the treaty bodies is the use of ‘Joint General Comments’,

such as the joint initiative of the CEDAW Committee and CRC Committee in the context of

harmful practices.164 A Joint General Comment on the ‘Human Rights Implications of

Disasters’, based on collaborative discussions drawing together the various approaches and

expertise already extant within the treaty bodies would be a welcome guidance document to

strengthen monitoring and accountability throughout the UN.

162 Guidance from the UN on the Charter and Treaty reporting process states: ‘Reports should elaborate both the de jure and the de facto situation with regard to the implementation of the provisions of the treaties to which States are a party. Reports should not be confined to lists or descriptions of legal instruments adopted in the country concerned in recent years, but should indicate how those legal instruments are reflected in the actual political, economic, social and cultural realities and general conditions existing in the country’. Meanwhile, the Common Core Document should contain: ‘information of a general and factual nature relating to the implementation of the treaties to which the reporting State is party and which may be of relevance to all or several treaty bodies’. Report of the Secretary-General: Compilation of Guidelines on the Form and Content of Reports to be Submitted by States Parties to the International Human Rights Treaties (3 June 2009) UN Doc HRI/GEN/2/Rev.6, paras.25, 27.163 Pillay (n 129) 51-52. For discussion of the High Commissioner’s report, see: Susanne Egan, ‘Strengthening the United Nations Human Rights Treaty Body System’ (2013) 13(2) Human Rights Law Review 209.164 The CEDAW Committee and CRC Committee envisage that the proposed joint General Recommendation/Comment on Harmful Practices will provide ‘a conceptual framework and recommendations for State Party action that are applicable to all harmful practices that fall within its scope’. See: <www.ohchr.org/EN/HRBodies/CEDAW/Pages/JointCEDAWandCRCGRecommendation.aspx> accessed 28 October 2014.

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5. CONCLUDING OBSERVATIONS

The pressures of workload and limited resources available to the UN human rights institutions

may act as a concerted brake on developing any new or additional areas of focus within either

the UN-Charter or Treaty-based bodies. Nevertheless, the recognition of the human rights

implications of natural and human-made disasters by the Human Rights Council coincides

with a resolute effort by the Office of the High Commissioner for Human Rights to strengthen

the overall monitoring and reporting of States’ human rights obligations and to improve the

coordination between the various components of the UN. Likewise, the key focus on human

dignity and human rights within the ILC draft articles on the Protection of Persons in the

Event of Disasters reinforces the requirement for a broader debate on how best to embed

effective and practical international oversight mechanisms into national and international

responses to major disasters.

Indeed, such a debate could help address concerns raised in the ILC as to the source of

the applicable norms underlying the draft articles. At present, references to disasters by UN

human rights bodies in General Comments do not examine 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.165

Therefore, the conclusion of disaster-specific Human Rights Council Resolutions, and

General Comments and Recommendations from the relevant Human Rights Treaty Bodies,

could act as an aid to interpretation of specific treaty provisions, thereby promoting a

coordinated and universal understanding of how existing human rights treaties apply in

disasters.

Concurrently, as noted by Françoise Hampson, the reformed UN human rights system

should promote governmental accountability via greater monitoring of domestic remedies for

individuals.166 For although national authorities have the primary responsibility to ensure the

protection of all persons in their territory, even countries with highly developed legal systems

and domestic human rights protections have struggled to ensure the rights of those affected by

major disasters.167 Furthermore, while regional judicial mechanisms such as the European

165 For details of relevant General Comments, see n 16.166 Hampson (n 125) 13.167 See for example: Sirkin (n 44).

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Court of Human Rights168 can provide an additional avenue for domestic accountability and

redress for human rights violations resulting from disasters, in reality only a small proportion

of persons affected by a major disaster will be able to pursue such a legalistic, lengthy and

expensive search for a remedy. Consequently, the extensive ratification of international

human rights treaties and broadly authoritative nature of pronouncements made by 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. Additional

advantages can be found in the active engagement of many domestic civil society bodies in

both the UPR process and the individual treaty reporting structures. So while individuals

affected by disasters may face particular challenges in bringing an individual complaint

alleging violation of their rights and seeking an effective remedy, obliging States to report on

their preparations for and responses to disasters on their territory would promote more

consistent human rights-based approaches to humanitarian action. Yet it is notable that one of

the limitations of the recent inter-governmental process for reforming the UN human rights

system set out in GA Resolution 68/268 is the lack of measures to address the implementation

and follow-up of treaty body recommendations. As a result, Broecker and O’Flaherty argue

that all stakeholders should continue to prioritise the strengthening of the system and to take

steps to mainstream treaty body recommendations across the UN, while also ensuring

coordination and cooperation with other international and regional human rights mechanisms,

and the promotion of standing national reporting and coordination mechanisms.169

The urgency to comprehensively examine the potential violation of human rights in

disaster settings is underscored by the increasing acknowledgement that climate change will

lead to the increased frequency and severity of hydro-meteorological disasters.170 So while

non-governmental accountability mechanisms established for humanitarian operations, such

as the Sphere Handbook,171 can assist in promoting respect for individuals and communities

affected by disasters, there is a growing need for a coordinated international approach to

168 For discussion of regional human rights accountability mechanisms and humanitarian protection, see: Hesselman (n 27); Steven Ratner, ‘Does International Law Matter in Preventing Ethnic Conflict?’ (2000) 32 NYU Journal of International Law and Politics 591; Flavia Zorzi Giustiniani, ‘New Hopes and Challenges for the Protection of IDPs in Africa: The Kampala Convention for the Protection and Assistance of Internally Displaced Persons in Africa’ (2010-2011) 39 Denver Journal of International Law and Policy 347; Stephane Ojeda, ‘The Kampala Convention on Internally Displaced Persons: Some International Humanitarian Law Aspects’ (2010) 29(3) Refugee Survey Quarterly 58.169 Broecker and O’Flaherty (n 25) 27.170 OHCHR (n 154) para.8.171 The Sphere Project, Humanitarian Charter and Minimum Standards in Humanitarian Response, April 2011.

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recognise and enumerate the rights-holders and duty-bearers in disaster settings, and to

provide practical support and guidance to States and humanitarian actors on how best to

ensure all human rights are respected in the complex context of disaster preparation and

response.

This article has highlighted various international efforts to enhance legal clarity on the

protection of persons in disasters, notably the work of the ILC and initial moves by UN

human rights supervisory bodies. We argue that, subject to appropriate funding and political

will, the existing UN human rights monitoring system is well placed to take up the challenge

of elaborating and promoting the normative human rights standards applicable in disaster

settings and mainstreaming these within existing UN human rights institutions. In particular,

the need to include natural and human-made disasters more systematically within the existing

mandates of the Human Rights Council and treaty monitoring bodies is highlighted, along

with the potential establishment of a dedicated mandate-holder on the human rights

implications of disasters. Furthermore, the conclusion of Resolutions, General Comments and

Recommendations would provide key guidance to States and other humanitarian actors on the

rights of those affected by disasters, while promoting clarity on their concomitant obligations.

Simultaneously, regular examination of a State’s preparations for and responses to natural and

human-made disasters, including through the Universal Periodic Review process and treaty

body reporting procedures, would provide an improved level of international oversight for

States’ acts and omissions. Combined, these accountability mechanisms would allow for

increased monitoring of human rights in all phases of disaster preparation and response,

thereby ensuring that human rights principles become embedded in domestic disaster

management systems, and giving practical effect to the ILC’s acknowledgement of the

requirement to respect the human rights and inherent dignity of all people affected by

disasters.

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Documents

· Web viewIn 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