ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
ACCOUNTABILITY FOR THE HUMAN RIGHTS IMPLICATIONS OF
NATURAL DISASTERS: A PROPOSAL FOR SYSTEMIC
INTERNATIONAL 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.
1
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
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 underused 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-stallsphilippines> 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.
2
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
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
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’, BrookingsLSE 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.
13
3
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
While it has proven challenging to systemically condense these various legal and nonlegal 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
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, 12526, 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.
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
19
4
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
Simultaneously, General Assembly Resolution 67/87 (March 2013) stressed that the
accountability of humanitarian actors should be enhanced as accountability is ‘an integral part
of effective humanitarian assistance’.22 Such developments demonstrate 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
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).
5
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
management, including the International Law Commission (ILC) draft articles on the
protection of persons in the event of disasters, before analysing relevant pronouncements
made by UN human rights monitoring bodies.
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
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
26
6
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
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 InterAgency 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
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.
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).
7
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
responsibility to undertake preventative measures, for example in relation to respect for life or
the home and the right to information, to reduce the risk and consequences of disasters
occurring.40 Such international judicial acceptance of States’ obligations provides an
additional impetus for a comprehensive examination of all the human rights implications of
disasters, particularly considering that pre-disaster preparedness is excluded from the narrow
scope of the research proposed by HRC Resolution 22/16.
As natural events such as earthquakes or flooding only become disasters when they
negatively impact human life, livelihoods or property, a broadly accepted description of a
‘disaster’ is a natural hazard plus vulnerability.41 This description highlights that people are
impacted differently by the same event, and recognises the differential vulnerabilities within
and between populations to diverse natural hazards. For instance, the exceptionally large-scale
earthquake that hit Japan in March 2011 led to relatively fewer casualties than smaller
earthquakes in Haiti and Chile due to Japan’s ‘famed emergency preparedness and
construction standards’.42 Identifying and remedying pre-existing vulnerabilities, for example
in the field of adequate housing, are thus of fundamental importance prior to a disaster
occurring.43 One can therefore predict that States with strong internal procedures and
mechanisms deal more effectively with disaster situations than those whose infrastructure and
State apparatus are unprepared and so more easily overwhelmed.44 A human rights approach
towards disasters can play a useful role in guiding such preparations and establishment of
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 PostConflict 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.
8
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
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).
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
International and Comparative Law 449; J. Benton Heath, ‘Disasters, Relief, and Neglect: The Duty to Accept
46
9
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
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
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.
10
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
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).
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.
57
11
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
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 longheld 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.
12
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
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.
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.
68
13
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
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, quasijudicial, 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.
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.
72
14
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
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 processoriented 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.
15
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
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
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%20Disas
ters%2020140410.pdf> accessed 28 October 2014.
83
16
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
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,
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.
17
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
including the right to an adequate standard of living (comprising access to food, clothing,
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).
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.
88
18
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
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.
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.
95
19
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
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.
20
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
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 AfricanAmericans. 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.
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.
106
21
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
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/34, 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’.
22
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
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).
23
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
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 ongoing 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_No
v_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.
24
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
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 crosscutting 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.
25
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
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.
26
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
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).
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).
137
27
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
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 postdisasters 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).
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).
143
28
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
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).
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.
148
29
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
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.
30
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
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).
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 mandateholders 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.
157
31
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
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 crosscutting 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.
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.
162
32
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
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
165
166
For details of relevant General Comments, see n 16.
Hampson (n 125) 13.
33
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
major disasters.167 Furthermore, while regional judicial mechanisms such as the European
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
167
See for example: Sirkin (n 44).
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.
168
34
ACCEPTED FOR PUBLICATION IN THE NETHERLANDS QUARTERLY OF HUMAN RIGHTS
NOT TO BE CITED PRIOR TO PUBLICATION
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
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.
171
The Sphere Project, Humanitarian Charter and Minimum Standards in Humanitarian Response, April 2011.
35