Roundtable on "Canada and International Law, Department of Foreign Affairs and International Trade

Humanitarian Perspectives on "Protection of Persons in the Event of Disasters"

Thanks for the opportunity to participate in this Roundtable discussion on the International Law Commission’s work on the Protection of Persons in the Event of Disasters.[1] Although I am not a lawyer, all humanitarian work is, or should be, grounded in international human rights law and I welcome the opportunity to make some comments about the International Law Commission’s work in the context of humanitarian action. I will also speak from my experience in using the Operational Guidelines on Human Rights and Natural Disasters – a document based on international human rights law – with a variety of practitioners – from UN agencies to government staff to NGOs and community-based organizations.

Let me say at the outset that this report is a very useful compilation of relevant international law, bilateral treaties, various General Assembly resolutions, guidelines, etc. ( For example, while traveling in South Asia these past two weeks, I referred to it several times in meetings on various issues. ) If no changes are made to the document and it stands as it is, it is still very valuable and I would suggest that it be published with a good index so that when humanitarians argue (as they do) about who says what about protection, there is an easy resource for finding the answer.

Definitions

Although the topic of the 158-page document is “protection in the event of disasters,” the term “disaster” or “natural disaster” is never defined. Although it is clear that the focus of the ILC’s work will not be on conflict and that a holistic approach will be used, it is not clear whether the intent is to consider only disasters resulting from natural hazards or to also include other

disasters resulting from human action or inaction (such as chemical spills and industrial accidents). While the ILC could go either way, the experience of humanitarian actors suggests that it can be difficult to draw a clear line.

The document alludes to the difficulties in defining “natural” versus “man-made” disasters, an observation which is commonly made in humanitarian circles. Some would go so far as to argue that there are no “natural” disasters and that the “disaster” is the result of the failure of authorities to prevent negative effects of natural phenomena or their failure to respond adequately. At a meeting last week in Chennai, India, for example, one observer noted that the disaster of the 2004 tsunami was not the earthquake which produced the tidal surges, but rather the poorly-executed humanitarian response. Most humanitarians recognize shared responsibility between natural phenomena and human actions. For example, mudslides increase in Nepal as a result of both glacier runoff (a natural cause) and deforestation (a man-made cause). Is it possible to allocate responsibility for a natural disaster when it is shared between nature and people? For example, to what extent was the breaching of the levees the result of Hurricane Katrina or the failure of US authorities to take preventive actions to protect its citizens? This leads into questions of responsibility – which is central to discussions of man-made disasters. For example, if the damage caused by the flooding of the 9th ward in New Orleans were found to be the result of governmental inaction, is this grounds for civil suits by affected communities?[2] If say, scientists and engineers were able to apportion responsibility between natural phenomenon and governmental action or inaction – a failure to protect, if you will – to what extent could relevant authorities be held legally accountable?

A second issue related to definitions concerns the way in which disease is considered. The ILC report does not mention epidemics as a natural disaster and yet the international humanitarian community generally considers the threat of pandemics -- such as mad cow disease (aka Bovine Spongiform Encephalopathy (BSE)) in 2000 and Severe Acute Respiratory Syndrome (SARS) in 2005 -- as natural disasters. Are epidemics natural phenomena – or the result of inadequate human control – or both? Should the response to widespread disease outbreaks be in the same order as to geological or weather-related phenomena? If pandemics are to be considered similarly as other types of natural hazards, then there are questions as to the dividing line between illness and emergency. There have been often bitter arguments, for example, in the humanitarian community about whether HIV/AIDS should be considered a “natural disaster.” Should biological phenomena – such as plant disease (the great Irish potato famine of the mid-1800s) or foot and mouth disease which has occasionally paralyzed the economies of countries such as Argentina or locust infestations (West Africa, 2004)[3] – be considered as natural disasters? These are not just philosophical discussions of definition of concern to wordsmiths. Designating a particular phenomenon as a natural disaster (or simply as a disaster) triggers a different magnitude of national and international response than when a disease is considered part of the regular order of things.

This brings up a third burning definitional issue which often comes up in humanitarian circles: the relationship between sudden-onset and slow-onset disasters. The ILC report refers exclusively to sudden-onset disasters – cyclones, hurricanes, earthquakes. Frankly, these are the “easy” events to identify. The question is whether slow-onset disasters –droughts, creeping desertification – are of the same nature as sudden-onset disasters or should they rather be considered as some of the myriad contextual factors that influence people’s day-to-day living conditions and which also contribute to decisions on economic migration? These are terribly difficult questions on the humanitarian side and I know that they will not be any easier on the legal side, but I would encourage the Commission to do some further thinking about this distinction. It is an issue which will become more important in the future. For example do people who migrate because of slow-onset, persistent drought have a privileged claim on the international community, in comparison, to people who flee grinding urban poverty? Or simply demographic pressure? Is the international community’s response to people fleeing “natural” conditions in their homelands a function of the suffering they endure? The magnitude of the effects of the phenomenon? Or the suddenness of its impact? How sudden does a phenomenon need to be to trigger an emergency humanitarian response? The effects of an earthquake may be felt in a matter of minutes, a tsunami in matter of hours, hurricanes and cyclones in days, flooding sometimes over a period of weeks, droughts over a period of months or even years. Can a dividing line be drawn between sudden and slow-onset disasters? Or is the question of time even relevant in deciding whether a particular phenomenon constitutes a disaster?

There are different ways of defining disasters – by origin, for example (natural versus manmade), but also by magnitude and need. There are some who are suggesting that the present global economic crisis should be considered as a disaster. It may be that the ability of a community to cope with a particular event or condition is the relevant criterion for determining whether or not a particular phenomenon constitutes a disaster. The definition of natural disaster used in the Operational Guidelines on Human Rights and Natural Disasters is: “the consequences of events triggered by natural hazards that overwhelm local response capacity and seriously affect the social and economic development of a region.”[4] The International Disaster Response Law Guidelines put forward by the International Federation of Red Cross and Red Crescent Societies (IFRC) defines a disaster as “a serious disruption of the functioning of society, which poses a significant, widespread threat to human life, health, property or the environment, whether arising from accident, nature or human activity, whether developing suddenly or as the result of long-term processes, but excluding armed conflict.”

A related issue which the ILC may want to consider is the question of when a disaster becomes an issue of international concern. The Operational Guidelines suggests it is when “local capacity is overwhelmed,” but there are also cases where Bangladeshis flee flooding cross an international border and certainly cases where prospect of the spread of diseases generate international concern.

There are no easy answers to these definitional issues. But for humanitarian practitioners, these are burning issues. What does international law say about treating those fleeing a one-year-long locust infestation with those fleeing steadily increasing drought?

Other sticky points where further reflection would be helpful:

Climate Change. Related to the definitional dilemmas noted above, I was struck by the fact that the document does not mention climate change. As you know, the scientific evidence is clear that climate change is real, is manifest in different ways, and is already having an impact on human beings. As the International Strategy for Disaster Risk Reduction makes clear, the number and severity of natural disasters is increasing.[5] In an analysis of sea surface and storms since 1990, Kerry Emanuel of the Massachusetts Institute of Technology found that cyclones have grown fiercer in recent decades. A combined measure of duration and wind speeds of cyclones has nearly doubled since the 1970s; the durations of hurricanes and cyclones have increased by roughly 60% since 1949 and average peak storm wind speeds have increased about 50% since the 1970s.[6] Both sudden and slow-onset disasters are likely to increase. The Calcutta Research Group reports that 7% of the landmass of the Indian state of Assam has been lost due to riverbank erosion which in turn is due to changing patterns of glaciers melting in Nepal – largely attributed to climate change. Small island states are already reporting rising sea levels which most scientists predict will result in the disappearance not just of land mass, but of nations, cultures, identities, languages, and representation in the UN.

At the initiative of the Representative of the Secretary General on the Human Rights of Internally Displaced Persons (RSG) Walter Kälin, the Inter-Agency Standing Committee has identified a number of gaps in the international legal system to respond to those displaced as a result of climate change. In particular he notes: those forcibly displaced across an international border as a result of sudden-onset natural disasters, those whose territory is rendered uninhabitable as a result of environmental effects resulting from climate change, and those affected by a reduced availability of water and by a decrease in crop yields.[7]

Discussions of climate change also often bring up questions of state responsibility and I suspect that this is one of the reasons that the Commission has not mentioned climate change in its reports. But I do want to note that humanitarian actors are worried about this issue and, if the worst predictions come to pass, this could overwhelm both international law and humanitarian action in the coming decades.

Civil Society and NGOs. I felt that the document overall –perhaps inevitably as it reflects the state of international law – is UN-centric and does not give adequate attention to the role played by NGOs and especially local communities. Somewhere there needs to be an acknowledgement that most lives are saved in the immediate aftermath of natural disasters by local communities and NGOs. Similarly, probably reflecting the state of international law, the discussion on coordination mechanisms is weak and outdated. In looking at responsibility for coordination, the document seems to indicate that a) the state has somewhat of a priority status in international law in coordinating humanitarian assistance on its territory, but b) there are also claims by the UN and other coordinating bodies and c) the flexibility resulting from this lack of clarity is probably good. This is probably a good summary of what international law says about coordination, but it largely misses the central dilemma facing humanitarian actors: how to deal with the thousands of actors seeking to assist victims of disasters?

To give one of many examples, in 2007, there was terrible flooding centered in Bihar, India which affected some 28 million people. According to the All India Disaster Mitigation Institute, the national government allocated limited funds and a few political leaders visited the region. The local government, which should have taken the lead in coordinating the response, was in fact mired in incompetence and corruption. Meanwhile, there were UN agencies, international NGOs, and 30,000 registered local NGOs in Bihar ready and willing to act.[8] Flexibility in coordination mechanisms is needed, but there are serious questions about how coordination can be achieved with today’s multiplicity of international and especially local and national humanitarian actors. How can 30,000+ actors be coordinated? I do not think that we should expect international law to provide guidance on operational issues of coordination, but I would suggest that the report acknowledge the complexity of the issue of coordination and of the primary role played by local communities in disaster response. It is also important to remember that governments are not monolithic and disaster response usually involves the actions of different governmental ministries, military as well as civilian actors, and a variety of actors at the provincial, district and/or municipal levels. While it is a national responsibility to determine who, how and at what level the government responds, the involvement of different layers of actors certainly complicates efforts at coordination.

Prevention or preparedness. The Hyogo Framework for Action, although not a binding international instrument, does affirm the duty of states to try to reduce the risk of disasters.[9] Do governments have a responsibility to prevent disasters – or at least the harmful consequences of natural hazards? I note, for example, that the European Court of Human Rights found the governments of Turkey and of Russia responsible under international law for failing to take preventive measures against foreseeable disasters, thus violating their obligation to protect human life.[10] In the Öneryildiz case[11] (Turkey, 2004), despite warnings two years prior, 39 people were killed by a methane explosion in a public garbage/rubbish dump situated on a slope overlooking a valley in Ümraniye, Istanbul. In the Budayeva case[12] (Russia, 2008) the Court expanded the recognition of the state’s duty to protect human life in the event of natural disasters. In 2000 a mudslide in Tyrnauz (central Caucasus) was triggered by the Gerhozhansu River, killing several and destroying buildings in its path. Heavy damage to retention dams by previous mudslides in 1999 had been left in disrepair. The government failed to take necessary measures despite warnings by the state metrological institute. In both cases, the Court ordered the governments to pay substantial compensation to the survivors.

Another question related to prevention: when governments or humanitarian actors pre-position supplies, for example, is this an act of prevention or an act of preparedness which is actually a part of response to natural disasters?

The right to humanitarian assistance. Finally, the report acknowledges the lack of consensus in the international legal community about an individual’s right to humanitarian assistance although I was surprised that the document did not reference the argument that the right to food, health care, and shelter infer a right to humanitarian assistance when the government lacks the capacity to protect such basic rights.[13]

When one moves to the issue of whether the international community has a right – or a duty – to offer humanitarian assistance, the question becomes still more complicated and is related to the issue of humanitarian access While the question of humanitarian access is one of the most difficult and highly politicized issues in humanitarian action today, I found its discussion in the report (paras 81-119) quite technical. The ILC report also references the debate on the “Responsibility to Protect,” noting the difficulties of applying this concept to disaster response. As you all know, the response of the Myanmar government to Cyclone Nargis in May 2008 led to passionate discussions about the right or duty of the international community to respond when a national government was unwilling or incapable of providing humanitarian assistance to its people. This is a contentious issue raising the sometimes competing principles of national sovereignty and international human rights. On an operational level, it is also contentious as there is often local resentment when the international community comes charging in while local responders feel pushed aside or overwhelmed. I would suggest that this is an area where further reflection is needed. In fact, I think it might be useful to bring together a small group of experts from both the legal and humanitarian policy communities to tease out some of the areas of possible overlap between R2P and questions about the right to humanitarian assistance.

Finally, let me just say a word about the IASC Operational Guidelines on Human Rights and Natural Disasters. These Guidelines were developed in the aftermath of the 2004/05 tsunamis, earthquakes and hurricanes and reflected the realization that in responding to the victims of natural disasters, their human rights were too often ignored. In fact, the process of developing the Guidelines led to a realization that many of the human rights violations long evident in response to internal conflict situations were also present in the aftermath of natural disasters.

The problems that are often encountered by persons affected by the consequences of natural disasters include: 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.[14]

The Operational Guidelines “are informed by and draw on relevant international human rights law, existing standards and policies pertaining to humanitarian action, and human rights guidelines on humanitarian standards in situations of natural disasters.”[15] In essence, they seek to bring a rights-based perspective to humanitarian response to natural disasters. The Operational Guidelines are accompanied by a Manual which provides both references to the international legal principles on which they are based and concrete operational examples. (The manual, having been field-tested for the past year, is presently being revised and will be published shortly.) In other words, the Operational Guidelines were intended to bring international legal standards to those working in the field of disaster response in a very concise and practical way.

The RSG and the Brookings-Bern Project on Internal Displacement have been promoting the Operational Guidelines and organizing a series of workshops and training events to ensure their dissemination. In fact, last week I participated in one of these workshops for representatives from 9 South Asian countries which included representatives of governments, UN agencies, international and national NGOs and community-based organizations. I was struck by diversity of human rights issues which surfaced in the discussions, from practical questions of how to ensure that the rights of persons with disabilities are respected in the aftermath of disasters to the role of military forces in monitoring protection to the myriad ways in which local grassroots groups were providing social protection to their communities. I was also struck by the eagerness with which these diverse actors embraced the guidelines. It was as if something “clicked” for many of them and they were suddenly able to put their concerns into a rights-based context. This suggests to me both a wealth of experience of humanitarian actors to contribute to the development of international guidelines and frameworks and a receptivity to incorporating international legal standards into their day-to-day work of responding to those suffering from the results of deadly catastrophes.

I thus close by commending the International Law Commission for its work thus far, by assuring those of you involved in its processes that your work is indeed needed by and relevant to humanitarian actors, and encouraging you to think of ways to disseminate the results of your labors to people laboring in the field.



[1] International Law Commission, Preliminary Report on the Protection of Persons in the Event of Disasters, by Eduardo Valencia-Ospina, Special Rapporteur, 5 May 2008, A/CN.4/598.

[2] As of March 2009 a US District judge ruled that a lawsuit by six plaintiffs against the Army Corps of Engineers can proceed to trial, set to commence April 20. The lawsuit seeks compensation and argues that the Army Corps failed to properly maintain the Mississippi River-Gulf Outlet, dug by the corps and which allowed the flooding of eastern New Orleans and St. Bernard Parish. Also, in January 2008, the same district judge, Duval, dismissed a class-action lawsuit against the corps over the breaching of New Orleans' 17th Street Canal during Katrina, ruling that the Flood Control Act of 1928 grants immunity to the corps. See AP article: http://news.yahoo.com/s/ap/20090320/ap_on_re_us/katrina_flood_lawsuit

[3] The UN Consolidated Appeal for West Africa 2005 was raised in March 2005 to US$190.3 million from the original request of US$152.3 million. See OCHA, Consolidated Appeal for West Africa 2005 - Mid-Year Review, 29 June 2005: http://ochaonline.un.org/cap2005/webpage.asp?Page=1301.

[4] Inter-Agency Standing Committee, Protecting Persons affected by Natural Disasters: IASC Operational Guidelines on Human Rights and Natural Disasters, Washington, DC: Brookings-Bern Project on Internal Displacement, June 2006.

[5] See Elizabeth Ferris, “Making Sense of Climate Change, Natural Disasters, and Displacement: A Work in Progress,” Brookings-Bern Project on Internal Displacement, Dec. 2007.

[6] Kerry Emanuel, “Increasing destructiveness of tropical cyclones over the past 30 years,” Nature, 436 (4 August 2005): 686-688.

[7] See Walter Kälin, “Displacement Caused by the Effects of Climate Change: Who Will Be Affected and What Are the Gaps in the Normative Framework for Their Protection?” Background paper, October 2008, available: http://www.brookings.edu/papers/2008/1016_climate_change_kalin.aspx. A more extensive version of this paper was submitted to the IASC informal working group on climate change and migration/displacement on 15 September 2008.

[8] Southasiadisasters.net, “The Bihar Floods 2007: A Devastating Disaster,” 2007 Floods in South Asia: From Impact to Knowledge, Special Issue 39, October 2007, p. 7.

[9] See “Hyogo Framework for Action 2005-2015: Building the Resilience of Nations and Communities to Disasters,” Extract from the final report of the World Conference on Disaster Reduction (A/CONF.206/6).

[10] See Walter Kälin and Claudine Haenni Dale, “Disaster risk mitigation – why human rights matter,” Forced Migration Review, University of Oxford, No. 31, pp. 38-39.

[11] European Court of Human Rights, Öneryildiz v. Turkey, Application 48939/99, judgment of 30 November

2004.

[12] European Court of Human Rights, Budayeva and others v. Russia, Applications nos. 15339/02, 21166/02,

20058/02, 11673/02 and 15343/02, judgment of 20 March 2008.

[13] David Fischer, “The Right to Humanitarian Assistance,”

[14] IASC Operational Guidelines, p. 8.

[15] Ibid., p. 10.