Accountability for the Human Rights Implications of Natural Disasters
| Published date | 01 March 2015 |
| DOI | 10.1177/016934411503300103 |
| Date | 01 March 2015 |
| Author | Dug Cubie,Marlies Hesselman |
| Subject Matter | Part B: Article |
Netherlands Qu arterly of Human Ri ghts, Vol. 33/1, 9–41, 2015.
© Netherlands I nstitute of Human Rig hts (SIM), Printed in the Net herlands. 9
PART B: ART ICLE S
ACCOUNTABILITY FOR THE HUMAN RIGHTS
IMPLICATIONS OF NATURAL DISASTERS
A PROPOSAL FOR SYSTEMIC INTERNATIONAL
OVERSIGHT
D C* and M H**
Abstract
e practical and operational challenges of responding to di sasters such as earthquakes ,
tsunamis and hurricanes are wel l known. e recent decis ion 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 therefore re ects the
increasing acknowledgement of the human rights implications of natural and human-
made disasters. is 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 e ective and systematic
ove rs igh t of hum an r igh ts pro tec tio n in dis as ter s. Suc h sy ste mic app ro ach es a re i nte nde d
to promote greater legal clarity for States an d humanitarian actors confronted with the
uncertainty and devastation res ulting from major natural and human-made disasters,
and as a means of spurring redres s for those a ected.
Keywords: accountabilit y; disasters; human rig hts; Human Rights Council; ILC;
monitoring; Treaty Bodies
‘Disaster protect ion is not only about science; it i s also about the deve lopment of appropriate
institutional arrangements so that the best possible use is made of scienti c inform ation
[…]. is means that i n addition to establishi ng standards base d on […] right s, well-
* Lect urer i n Law, S chool of Law, Que en’s Unive rsity Belfa st, No rther n Irel and. is paper origi nated
in presentations at the University of Leiden conference on International Humanitarian Assistance
and Internation al Law, 24–25Janua ry 2013. Dr Cubie acknowledges t he generous support of an
Irish Resea rch Council New Foundations aw ard for attendance at this c onference, and subsequent
research visit to the University of Groningen. We would also like to thank érèse O’Donnell,
University of Strat hclyde, for her insight ful comments, a s well as the valua ble input and suggest ions
of two anonymous re viewers. Any mista kes or omissions remain ou r own.
** PhD candidate , Department of Internat ional and Constit utional Law, University of Gronin gen, the
Netherlands .
Dug Cubie and Marlie s Hesselman
10 Intersentia
designed institut ions of accountability need to be created. Ba sic disaster relief is not about
charity’.1
1. INTRODUCT ION
e unambiguous need for improved legal fra meworks for the protection of persons
in the event of disasters has been on the international agenda since the public ation
of the World Disasters Report by t he International Federation of Red Cross and Red
Crescent Societies in 2000, which highlighted t he lack of coordinated international
legal mechanisms for di saster responses.2 Unfortunately, the practica l and operational
challenges of responding to earthquakes, tsunamis and hurricanes are well known.3
Rich countries such as New Z ealand and the USA have been found wanting in
the recent past,4 and the human itarian challenges are magni ed many times over
in developing countries such as t he Philippines5 or Haiti .6 Moreover, the interplay
between natural d isasters and human-made disasters, such a s major technological
accidents, were starkly high lighted by the 2011 Japanese earthquake and tsu nami,
and the resulting nuclea r emergency at the Fukushima power plant.7 David Fisher
has argued that such operat ional challenges arise because internat ional disaster relief
resembles a ‘swashbuckler’s paradise’, with a scattered and under-used international
legal regime and sc ant applicable law at the national level.8 Eduardo Valencia-Ospina,
the International Law Comm ission’s Special R apporteur on the Protection of Persons
in the Event of Disasters, has li kewise lamented the cur rent ‘amorphous state of
1 Randolph Kent, ‘ e Human Right to Di saster Mitigation a nd Relief’ (2001) 3(3) Environmental
Hazards 137, 137.
2 International Fe deration of Red Cross and Red Crescent So cieties (IFRC), World Disasters Rep ort
2000 (Geneva, 2000) 145: ‘ ere is no de nitive, broadly accept ed source of internationa l law
which spells out le gal standards, proc edures, rights and dutie s pertaining to di saster response and
assistance . No systematic attempt has been ma de to pull together the dis parate threads of exis ting
law, to formalize c ustomary law or to expa nd and develop the law in new ways’.
3 See Victoria Ba nnon and David Fisher, ‘Lega l Lessons in Disas ter Relief from the Tsunam i, the
Pakista n Earthquake a nd Hurricane Katr ina’ (March 2006) 10(6) ASIL Insig hts /
insights/volu me/10/issue/6/legal-lesson s-disaster-relief-t sunami-paki stan-earthq uake-and-hurri
cane> access ed 9January 2015.
4 See for example Mar ia Isabel Medina , ‘Confronting the R ights De cit at Home: Is the Nation
Prepared in the A ermath of Katrina? Confronting the Myth of E ciency’ (2006–07) 43 California
Western Law Revi ew 9.
5 Tania Branigan and Kate Hodal, ‘Typhoon Haiyan: Frustration at Slow Pace of Relief E ort’ e
Guardian (London, 15 Novem ber 2013) an.com/world/2013/nov/14/typhoon-
haiyan-relief-e ort-stalls-ph ilippines> accesse d 9January 2015.
6 Inter-Agency Standing Committee (IASC), Respons e to the Humanitarian Crisi s in Haiti following
the 12January 2010 Earth quake: Achievement s, Challenges and Le ssons to be Learne d (2010).
7 Daniel Farber, ‘Legal Scholarship, e Disaster Cycle, and the Fuk ushima Accident’ (2012) 23(1)
Duke Environ mental Law and Policy For um 1.
8 David Fisher, ‘Internat ional Disaster R elief: A Growin g Regulator y Dilemma’ (2007) 101 Proceedings
of the Annual Meeting (A SIL) 114.
Accountabilit y for the Human Right s Implications of Natura l Disasters
Netherlands Qu arterly of Human Ri ghts, Vol. 33/1 (2015) 11
the law relating to international d isaster response’, noting that it is o en di cult to
distingu ish between lex lata and lex ferenda.9
To enhance legal clarity for States and huma nitarian actors confronted with
the uncertainty and devastation resulting f rom major natural and human-made
disasters, a number of in itiatives have been advanced over the past decade to elaborate
the normative standards a nd legal frameworks for humanitarian action in disaster
settings. Indeed , international law and practice is not silent on the legal implications
for those a ected by humanitarian cr ises – not least because human rights norms are
equally applicable duri ng such crises. For example, the international humanitarian
law of armed con ict has conta ined explicit rights for civilians to reque st and receive
humanitaria n assistance i n times of war for over 60 year s;10 while international c rimina l
law invokes individual cri minal responsibility for actions resu lting in the denial of
humanitaria n assistance, i ncluding starv ation as a method of warfa re or attacks agai nst
human itaria n personnel .11 Moreover, internationa l refugee and displaced persons law
has fundamenta lly advanced understanding of t he rights-holders and duty-bearers in
natural and huma n-made disasters through, for example, the UN Guid ing Principles
on Interna l Displacement and the role of the UN High Commis sioner for Refugees i n
responding to displacement caused by disasters.12 Meanwhile, it is widely recognised
that human rights treat ies and international customary huma n rights norms continue
to apply in disaster settings, as evidenced in t his article.13 Final ly, a wide range of
bilateral, trilatera l and regional i nstruments relating to disas ter risk reduction,
civil defence and mutual assistance have been concluded,14 as well a s a plethora of
9 Eduardo Valencia-Ospi na, Preliminary Repo rt on the Protection of Perso ns in the Event of Disaste rs
(5May 2008) UN Doc A/CN.4 /598, para 59.
10 Ruth Sto els , ‘Legal Re gulatio n of Humanit arian A ssistanc e in Armed C on ict : Achievements and
Gaps’ (September 20 04) 86(855) International Review of t he Red Cross 515.
11 Christa Rottensteiner, ‘ e Denial of Huma nitarian As sistance as a Cri me under Internationa l Law’
(September 1999) 835 Internatio nal Review of the Red Cross 555; Dug Cubie , ‘Is the Wilful Denia l
of Humanitar ian Assistance in Nat ural and Human-Made Di sasters a Crime Agains t Humanity?’
(Summer 2012) ASIL Accountabi lity Newsletter.
12 See UN Commission on Hu man Rights, e Guiding Principles on Int ernal Displa cement (199 8)
UN Doc E/CN.4/1998/53/Add.2; Roberta C ohen, ‘Reconciling Responsibil ity to Protect with IDP
Protection’ (Brooki ngs-LSE Project on Internal Displac ement, March 2010) 8; Bryan Desc hamp,
Michelle Azorb o, and Sebastian L ohse, Earth, Wind and Fire: A R eview of UNHCR’s Role in Rece nt
Natural Disaste rs (UNHCR Policy Development and Ev aluation Servic e, Geneva, June 2010).
13 See for example Dra Articles5 (Human Dign ity) and 6 (Human Rights) in t he ILC Dra Articles
on the protection of per sons in the event of disa sters (15May 2014) UN Doc A/CN.4/L.831. See also
UN Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No 4, e
right to adequate hou sing’ (13December 1991) UN Doc E/1992/23, para 8; ‘Gener al Comment No
12: e right to adequ ate food’ (12May 1999) UN Doc E/C.12/1999/5, paras 5, 6 , 13, 15, 38; ‘General
Comment No 14: e right to the hi ghest attainable sta ndard of health’ (11August 20 00) UN Doc
E/C.12/2000/4, par as 16, 40, 65; General Com ment No 15: e right to water’ (20Januar y 2003) UN
Doc E/C.12/2002/11, paras 16, 22 , 34, 60; UNCRC, ‘Gener al Comment No 3: HIV/AIDS and the
rights of the ch ild’ (17March 2003) UN Doc CRC/GC/20 03/3, para 34.
14 IFRC, Law and Legal Issue s in International Di saster Respon se: A Desk Study (Geneva , 2007) 62–84;
ILC, ‘Secretar iat Memorandum on the Protection of Persons in the Event of Disasters’ 60th Session
(11December 2007) UN Doc A/CN .4/590, 10–11, 29–36.
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