Human rights preparedness
Do you agree that the protection of persons must be of prime concern in disaster contexts? And do you agree that international human rights law, which is replete with explicit rights for the protection of persons and corresponding state obligations, must also be of prime concern in such contexts?
I expect that most, if not all, readers will agree in full with the first claim. But how many will agree with the second? The answer, I suspect, is not many at all.
This needs to change—and change is, in part, a matter of preparedness. We need to ask: are international human rights law and practice prepared for disaster response and risk reduction? And, are disaster response and risk reduction prepared for human rights?
In this blog, I focus on human rights preparedness, where the indicators may not seem at all promising. There is no international human rights treaty on disaster, and most international human rights treaties do not contain specific provisions on human rights protection in disaster settings: one notable exception is article 11 of the Convention on the Rights of Persons with Disabilities. More broadly, international disaster law is emergent, not extant. It remains dispersed and lacks progressive development. Relatedly, there is no general definition of disaster, no single definition of humanitarian assistance, and no agreement on whether there should be a specific right to humanitarian assistance in disasters.
There are signs of change, however. The UN’s Human Rights Council has completed a specific study on the human rights implications of disasters (albeit with an unnecessarily narrow focus on relief, recovery and reconstruction). The UN human rights treaty bodies have started to elaborate on when states can invoke the right to derogate from international human rights commitments during a natural or man-made catastrophe. They have also explained that certain minimum requirements to live a dignified life must be guaranteed to everyone at all times, and reminded states to use all available resources, including international assistance, to secure these core requirements. The European Court of Human Rights, for its part, has grappled with the question of whether natural and man-made disasters create the same, or different, human rights obligations concerning preparedness and prevention of harm. Also, accountability for human rights violations in post-disaster assistance has moved to centre-stage amidst claims that UN peacekeepers were responsible for the cholera outbreak in post-earthquake Haiti. And the International Law Commission, the body charged by the UN General Assembly with making recommendations to encourage development of international law and its codification, is continuing its work on a set of draft articles on the protection of persons in the event of disasters.
Securing these and related changes—making human rights preparedness real—will be undeniably complex. Some of this complexity comes from the fact that progress depends in part on change within the field of disaster response and risk reduction. If the field’s practitioners neglect international human rights law and practice, progress will falter. If they pursue surrogate languages (from, say, development or humanitarianism), insisting that these are human rights ‘by others means’, progress will falter. If they exaggerate the risk of being forced to be a human rights enforcer or a human rights advocate, progress will falter. We cannot allow progress to falter. Sophisticated engagement is what is required: nothing less, nothing more.
Thérèse Murphy is Professor of Law and Director of the Health and Human Rights Unit at Queen’s University Belfast. Her books include Health and Human Rights, and you can follow her @healthhru.