Reconsidering the utility of IHRL in disaster rules
In this presentation, IHRL’s utility in disaster rules is evaluated by considering how effectively marginalised people may use IHRL to address the concept of disaster. IHRL’s utility for marginalised people in relation to disaster is discussed by taking a critical, postcolonial approach to IHRL theory and practice regarding disaster.
1. Why must IHRL’s role in addressing disaster be re-considered?
A new disaster law is being established that has a state-centric nature, and IHRL is the dominant means by which international disaster law’s state-centric nature is being countered.
IHRL is used by advocates and legal experts to “humanise” the state-centricity of disaster rules. E.g. ILC special rapporteur’s advocacy of a rights-based approach, the incorporation of reference to human rights in ILC’s draft articles, academic discourse on the (human) right to humanitarian assistance and the application of human rights norms in disaster contexts, etc.
IHRL grants individuals partial subjecthood and is the sole means that individuals can use to bring suffering related to disaster into international legal forums.1
In disaster, the most economically, socially and politically marginalised people and states often suffer as a result of disaster, and have unequal access to tools of the mainstream, such as law, to address their concerns.
IHRL’s colonial links, its own state-centric nature, and the fact that the most marginalised countries and people often suffer the most as a result of disaster, means that the reliance on IHRL as the dominant means of humanising international disaster rules should be evaluated carefully.
2. Terminology
Disaster
Disaster = Hazard x Vulnerability
Hazards are external environmental phenomena that encompass technological or man-made hazards. E.g. earthquakes, landslides, storms, gas leaks, nuclear plant failures.
Vulnerability
The characteristics of a person or group and their situation that influence their capacity to anticipate, cope with, resist and recover from the impact of a hazard.
Marginalisation
People vulnerable to disasters are often most marginalised in society, and cannot access
1 International humanitarian law is not included because in the current disaster discourse the application of disaster rules are excluded from application in war. E.g. ILC Draft Articles
social, political, legal and economic resources, in order to make their concerns and needs felt to articulate their concerns to those with decision-making power.
International disaster law/international disaster rules
Soft and hard law sources organised on the concept of disaster, covering disaster relief as well as disaster preparedness, mitigation and prevention.
3. Preliminary issue: IHRL and IDL relationship
The nature of obligations in IHRL and IDL are fundamentally different, but their relationship can be said to be one of fruitful cross-fertilisation, because of fundamental common points in IHRL and IDL with relation to disaster, i.e. tackling vulnerability caused by, or the cause of, disaster.
IHRL has influenced IDL’s development, but IDL cannot be said to have influenced IHRL substantively.
Justification for IHRL’s incorporation into IDL is based on IHRL’s purported universality.
4. Approaches to disaster in IHRL literature
Two general approaches to disaster in IHRL literature:
1) Interpretation of existing norms in the context of disaster-related vulnerability
2) Advocacy for the creation of new norms to address protection gaps in the international disaster law framework
4.1 Application of existing norms to disaster
Dominant approach to IHRL and disaster in the literature, precipitated by the expanding reach of IHRL and the growing sophistication of mechanisms to ensure implementation.
E.g. Calls for the disaggregation of data on disaster victims by sex, age, and other socioeconomic factors in order to create better disaster reduction strategies; the notion of disaster-related vulnerability delineated by traditional human rights categories, such as women, children, indigenous groups in disaster risk reduction and post-disaster resources strategies, consideration of derogation of human rights in disaster situations, discussion of the potential for IHRL to provide a path for victims of disaster to claim remedies and reparations under IHRL, as well as consideration of the linkage between human rights, disasters and the responsibility to protect. ILC special rapporteur’s sixth report considers the application of human rights to disaster prevention, mitigation and preparedness.
4.2 Creation of new norms
This approach to the relationship between disaster and IHRL is most often expressed as support for the creation of a right to humanitarian assistance, or humanitarian intervention, but recently the notion of a human right to disaster preparedness and prevention has also surfaced.
The right to humanitarian assistance can be understood as a state right to provide humanitarian assistance (or humanitarian intervention) or the human right to receive humanitarian assistance. Discussion of a human right of people to receive humanitarian assistance has been relatively limited.
The human right to mitigation is argued for on the basis of rights such as the right to life. The ECtHR cases of Oneryildiz and Budayeva are often referred to. In these cases the court held that the right to life required states parties to take measures to mitigate natural or man-made disaster risks.
5. Approaches to IHRL and disaster in practice
The whole corpus of human rights law potentially applies to various facets of disaster, but only the CRPD establishes a right specific to disaster. E.g. rights to life, health, adequate housing, water, food, etc.
Individuals or NGOs may use IHRL in advocacy, lobbying or legal measures under currently operating human rights treaty mechanisms, and in the HRC.
Participation of NGOs in the HRC and treaty body meetings is limited, but their lobbying/awareness raising may contribute to the progressive development of the law
5.1 IHRL mechanisms that cannot be used directly by people
HRC: Soft law norms/resolutions. Resolutions may express international consensus on certain points, creating legal force.
Adequate housing as a component of the right to an adequate standard of living in the context of disaster settings, HRC/RES/19/4 (2012) (adopted by consensus): housing situations post-disaster “disproportionately affects persons living in poverty, low-income earners, women, children, persons belonging to minorities and indigenous peoples, migrants, internally displaced persons, tenants, the elderly and persons with disabilities, and increases the need for them to be supported against extreme natural disaster” (PP6). Urged states to respect protect and fulfil the right to adequate housing without discrimination of any kind, and in doing so, among other things: Give priority to the realisation of the right for the most disadvantaged and vulnerable by respecting the principles of non-discrimination and gender equality (OP4(c)); Aim to ensure access to ensure information and meaningful consultation and participation of affected persons and communities in planning and implementing
shelter and housing assistance (OP4(e)), etc.
Human rights treaty bodies: General Comments
CESCR General Comment 12, E/C.12/1999/5 (1999): Established that the right to adequate food could not be derogated from, even in cases of natural disaster. General Comment 12 also affirmed that the right to adequate food is inseparable from social justice and requires the adoption of economic, environmental and social policies at the national and international levels.
5.2 IHRL mechanisms that can be used by people
3 types of procedures individuals can use under treaty bodies: periodic state reports, inquiries, and individual complaints. Of these mechanisms, only periodic state reports have considered the concept of disaster.
2 types of mechanisms under HRC as Charter body: special procedures, UPR.
5.2.1 Treaty body mechanism: Periodic reports
Two approaches to disaster in periodic reports: 1) acknowledgement that disasters hinder the implementation of treaty rights; 2) disasters linked to systemic problems in relevant convention’s implementation.
1) e.g. CRC, Concluding Observations on Guatemala, CRC/C/GTM/CO/3-4 (2010), para. 10: “The Committee takes note of the negative impact of natural disasters faced by Guatemala, such as drought, tropical storm Aghata and the Pacaya volcano eruption, on the rights of children.”
2) CEDAW, Concluding Observations on Indonesia, CEDAW/C/IDN/CO/5 (2007), paras. 38-9: linked issues of systemic disadvantage to the effects of disaster and national planning for disaster mitigation preparedness and prevention.2
HRC, Concluding Observations on Thailand, CCPR/CO/84/THA (2005), para 23: noted that migrant workers were disproportionately affected by tsunami and survivors were not provided with humanitarian assistance because of their lack of legal status.
HRC Concluding Observations on the United States of America, CCPR/C/US/CO/3/Rev.1 (2006), para 26: After Hurricane Katrina, rights to life and equal treatment of poor African-Americans were violated because they were more vulnerable in post-disaster disaster management plans.
5.2.2 Charter body mechanism: HRC’s special procedures
Special procedures can be utilised directly by individuals, groups or other persons.
Mandate holders examine complaints, and depending on the content of their mandate, may conduct research; develop authoritative opinions and standards; send communications to states about alleged rights violations; etc.
Examination of disasters in country visits and recommendations to states
E.g. Special rapporteur on adequate housing, Mission to America, A/HRC/13/20/Add.4 (2010), para 30.
Special rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Mission to Japan,A/HRC/23/41/Add.3 (2013), paras. 70, 72-4
Para. 70: “The right to health requires the State to pay special attention to the needs of vulnerable groups.”
Para. 72: “Older persons, children, women and persons with disabilities are more susceptible to ill effects of disasters.”
Paras. 73-4: “Participation of the population at all stages of decision-making processes at national and community levels is a critical feature of the right to health framework.”
Para. 82: “ The special rapporteur urges the Government to ensure effective community participation, especially participation of vulnerable groups, in all aspects of the decision-making processes related to nuclear energy policy...”
Standard setting
E.g. Special Rapporteur on extreme poverty and human rights, Final draft of the guiding principles on extreme poverty and human rights, A/HRC/21/39 (2012). Para. 1: eradicating extreme poverty is a moral duty and a legal obligation Paras. 75-6: marginalised people have a limited capacity to access productive resources, among other things, and that therefore states should put in place early-warning mechanisms to prevent or mitigate natural or man-made disasters disproportionate exposure to natural disasters or environmental hazards threaten the lives and the health of those in poverty.
Paras. 79-80: states should design and implement disaster risk reduction policies and programmes in relation to housing, taking into consideration the rights of those living poverty
5.2.3 UPR
Since the UPR’s commencement in 2010, 6 UPR reports have been adopted:
Bangladesh, Estonia, Maldives, Nauru, Sri Lanka, and Viet Nam.3
Nauru and Maldives reports had the most detailed discussions of human rights and disaster.
E.g. HRC, UPR Working Group, Report of the Working Group on the Universal Periodic Review: Maldives, A/HRC/16/7 (2011): focal point of the UPR dialogue was the issue of the government of Maldives’ work to address climate change, and climate change-related natural disasters.
Paras. 100, 124: Recommendations to take measures to take a human-rights based approach to post-disaster reconstruction and adaptation to climate change, through consultation with affected communities and with particular attention to vulnerable groups such as women, children and persons with disabilities
Stakeholder report: government of the Maldives has the primary responsibility for the protection of human rights of people in the Maldives, those countries who have historically been responsible for the greatest proportion of greenhouse emissions, as well as the international community, have a responsibility to prevent climate change from undermining human rights in the Maldives.4
6. Analysis
IHRL’s significance and potential utility for addressing suffering in post-disaster contexts in political, academic, and quasi-legal ways is indicated in its use in human rights mechanisms, as well as in academic discourse on disaster.
IHRL provides a way for individuals to access and use the law, as well as influence its interpretation, and to a more limited extent, its creation.
The fundamental ethos of human rights may influence policy or international law-making on disaster relief, and more recently, on disaster risk reduction, so that IHRL’s categories of vulnerability are given a more central place in political and legal discussion.
7. Critique
The use of IHRL in both theory and practice has implicitly relied on the assumption that by achieving the protection, respect and fulfilment of IHRL justice is assured.
Assumption that people can use the law, and that states can fulfil rights.
3 HRC, UPR Working Group, Report of the Working Group on the Universal Periodic Review: Bangladesh, A/HRC/11/18 (2009); HRC, UPR Working Group, Report of the Working Group on the Universal Periodic Review: Estonia, A/HRC/17/17 (2011); HRC, UPR Working Group, Report of the Working Group on the Universal Periodic Review: Maldives, A/HRC/16/7 (2011); HRC, UPR Working Group, Report of the Working Group on the Universal Periodic Review: Nauru, A/HRC/17/3 (2011); HRC, UPR Working Group, Report of the Working Group on the Universal Periodic Review: Sri Lanka, A/HRC/8/46 (2008); HRC, UPR Working Group, Report of the Working Group on the Universal Periodic Review: Viet Nam, A/HRC/12/11 (2009). 4 HRC, UPR Working Group, Summary prepared by the OHCHR in accordance with paragraph 15(c) of the
Forms of marginalisation and disaster that do not fit into the traditional IHRL categories. E.g. Disasters “erased” from IHRL discourse
How does IHRL know what disaster and vulnerability are?
IHRL can be inappropriate mechanism to remedy IDL’s state-centrism for three reasons
1. IHRL may have no appreciable effect in certain situations
Situations of extreme marginalisation
States that are not capable of fulfilling IHRL obligations -> brings into question problems of extraterritoriality and obligations of non-state actors
Disasters that have transboundary causes and solutions
Situations where people are unwilling to use IHRL because of a lack of trust in the state
2. IHRL’s epistemology/links to development
Practitioners and academics often cannot “see” the violence wreaked by human rights discourse, particularly with regard to development issues.
E.g. Bhopal’s erasure from human rights discourse, notion of “everyday disasters” not easily dealt with under IHRL.
3. Limitations inhering in IHRL implementation/enforcement mechanisms
Wrongful acts must be asserted post-facto
Human rights implementation/enforcement mechanisms move slowly, inappropriate in immediate-post disaster contexts
Deeper issues of distribution of social, political, economic resources that contribute to disaster-related vulnerability are not often addressed in treaty body periodic reports, HRC mechanisms etc. because of diplomacy, and the need to ensure that states remains engaged. Recommendations and research often address issues at a superficial level, e.g. UPR reports, treaty body periodic reports (e.g. CESCR, re: Bhopal in Concluding Observations of the Committee on Economic Social and Cultural Rights: India, E/C.12/IND/CO/5 (2008),Para. 36), OHCRH research (OHCHR declined to conclude that climate change violates human rights law. See OHCHR, Report of the OHCHR on the relationship between climate change and human rights, A/HRC/10/61 (2009)), etc.
8. Conclusions
IHRL, by virtue of its individual-centric nature, as well as the various mechanisms that can be used by people, goes some way to addressing the state-centricity of international
disaster law.
However, there are also significant obstructions linked to IHRL’s architecture and assumptions about function that neutralise its use for marginalised people pre- and post- disaster.
Relying on IHRL as the sole discourse for “humanising” IDL is untenable.
Given that there is a correlation between marginalisation and disproportionate effects of disaster, law that seeks to have utility for vulnerable people in disaster must perform two functions: it must firstly address social, economic and political disparity by creating a space that enables marginalised people to be heard, and secondly, and secondly, it must act as a language through which those who are actually or potentially affected may communicate with those in control of resources, in order to discuss the distribution of various resources. Therefore rather than assuming that IHRL and its categories of vulnerability are able to address disaster, a view that marginalisation and disaster can have many forms related to social, economic and political marginalisation that are not necessarily related to IHRL will broaden legal analysis.
