On 1 November 1755 at 9:30am a massive earthquake followed by a tsunami hit the city of Lisbon, killing an estimated 70,000 people and destroying most buildings including the Royal Palace. The disaster shocked all of Europe and triggered a massive debate among its intellectuals about the meaning of the event. [1] While many felt that this was God’s plan and thus had to be accepted as a meaningful event, the French author Volltaire, in a poem written some weeks after the event highlighted the senselessness of the disaster and pointed out that man’s fate is “to suffer, to submit in silence, adore and die.”
Jean-Jacques Rousseau was offended by this deep pessimism and challenged Voltaire to admit that in the case of Lisbon
“nature did not construct twenty thousand houses of six to seven stories there, and that if the inhabitants of this great city had been more equally spread out and more lightly lodged, the damage would have been much less and perhaps of no account.”
Rousseau also pointed out that prompt evacuation after the first tremors would have saved many lives and asked:
“How many unfortunate people have perished in this disaster because of one wanting to take his clothes, another his papers?”
Beyond Rousseau’s continuing relevance: The duty to protect life
Roughly 250 years later Rousseau’s opinion that very often man, not nature, is to be blamed if people perish in natural disasters has become the mainstream approach to disaster risk reduction and building the resilience of affected communities. Interestingly, it is also reflected in the current human rights discourse. A particularly striking example is the 2008 Budayeva judgment [2] of the European Court on Human Rights. In this case, the Court concluded that the death of eight people in a town in the Caucasus mountains hit by a mudslide was not so much a consequence of the forces of nature but rather the result of human failure. It found that competent state authorities had failed to implement land-planning and emergency relief policies in the hazardous area of the affected town, i.e. had not taken necessary preventive measures to avert the foreseeable hazard, and not warned and evacuated people in time. Therefore, it concluded that the State party concerned had violated the right to life because of the “causal link between the serious administrative flaws” and the death of the victims and obliged the party to pay substantial compensation to the surviving family members. [3]
Thus, similar to Rousseau, the Court determined that the victims were not killed by nature but rather as a consequence of inappropriate human behavior, in particular the lack of measures to reduce the risks of the disaster. However, while Rousseau used the philosophical argument that proper use of human reason would help to mitigate the impact of disasters, the Budayeva judgment rooted its arguments in human rights guarantees, in particular, the duty of states to protect life as inherent in the right to life as embodied in international human rights conventions.
In summary, and as made explicit by the Court, the individual right to life and the correlate state obligation to protect life require with regard to natural disasters, including those related to climate change, that relevant authorities have an obligation to:
- Enact and implement laws dealing with all relevant aspects of disaster risk mitigation and establish the necessary mechanisms and procedures;
- Take the necessary administrative measures, including supervising potentially dangerous situations;
- Inform the population about possible dangers and risks and set up systems to alarm them when the danger becomes imminent;
- Evacuate potentially affected populations;
- Conduct criminal investigations and prosecute those responsible for having neglected their duties in case of deaths caused by a disaster; and
- Compensate surviving relatives of victims killed as a consequence of such neglect.
A human rights-based approach to resilience building
Much of the present debate about disaster risk reduction and strengthening resilience seems to be rooted in a modern version of Rousseau, namely that it is simply reasonable to take such measures. I would like to suggest that in line with the Budayeva judgment the time has come to move on and accept that a human rights based approach to dealing with the risks of disasters in and outside the context of climate change, has much to offer.
If we understand resilience as “the ability of a system, community or society exposed to hazards to resist, absorb, accommodate to and recover from the effects of a hazard in a timely and efficient manner,” i.e. the ability to “spring back from” a shock, [4] human rights can help in several regards.
First, human rights help to determine relevant areas of resilience building in a comprehensive manner. Human rights can be understood as legal instruments to address comprehensively those needs of human beings that have been identified in the course of history as being particularly worthy of protection. Going through the catalogue of human rights helps to identify all relevant areas of resilience building, including those that often are easily forgotten. Examples include:
- The need to take measures to preserve and where relevant restore family unity, e.g. by taking practical measures to ensure that children are not separated from their parents during evacuations or that they can easily be reunited if such separation happens;
- The need to ensure that those whose personal documentation was lost or destroyed have it replaced without delay, e.g. by storing copies of official documents in safe places or establishing simplified and efficient procedures to issue such documentation without delay in the aftermath of a disaster;
- The need to take preventive and preparatory measures necessary to protect housing, land and property rights, e.g. by keeping copies of land titles in a safe place, protecting property left behind by evacuees against pillage and further destruction, or providing for simplified procedures to solve property disputes in the aftermath of a disaster; or
- The need to plan and conduct disaster related interventions in ways that help to avoid discrimination based on gender, age, ethnic or social origin, etc.
Second, human rights provide guidance for appropriate action in certain areas of resilience building that pose particularly complex dilemmas for governments and other relevant stakeholders. Human rights law provides criteria to determine the content as well as the limits of what people can demand, but also of what can be demanded from them in terms of obligations, thus allowing determining the permissibility of governmental orders which are contested by those affected. One example is evacuations and relocations where the right of people to be protected against forcible displacement and the duty of state authorities to protect life clash in cases where affected persons reject being temporarily evacuated or permanently relocated from danger zones. Here, human rights law provides that forced evacuations or relocations are only permissible if: (i) they are provided for by law, (ii) are only carried out in order to protect the safety of the persons concerned and do not serve any other goal; and (iii) are necessary and proportional to this end and only resorted to if there are no other less intrusive measures in a given case. In particular, evacuations must not last any longer than absolutely necessary. In cases of permanent relocations, return can only be prohibited in very exceptional cases in which the area of return is indeed one with high and persistent risks for life or security, the remaining resources are inadequate for survival of returnees, the enjoyment of basic human rights cannot be guaranteed there, and all other available adaptation measures are exhausted, i.e. the situation in the area of return can no longer be alleviated by protective measures.
Third, human rights provide strong arguments for looking at affected persons as rights holders and not just objects of humanitarian action and disaster management activities. As such affected persons have, in particular, a right to be consulted and to participate in decisions relevant to their fate as a consequence of their freedom of expression and their political rights. Experience shows that people who take their lives into their own hands and can participate in shaping their fate are more likely to recover from the shock of disasters and thus more resilient.
Fourth, human rights allow identifying not only right holders but also duty bearers, thus allowing establishing accountability when relevant rights are violated. Human rights guarantees determine who is entitled to what vis-à-vis whom. This is particularly important because such identification enables in many cases those whose human rights have been violated to hold duty bearers accountable and get reparation.
Relevant standards
Besides national constitutional and legal guarantees, international and, where applicable, regional human rights conventions provide relevant standards. The specific meaning of these guarantees for the context of disasters has been further clarified and concretized by different instruments and tools. To the extent that disasters displace people within their own country, the 1998 UN Guiding Principles on Internal Displacement and the 2009 Kampala Convention on the Protection and Assistance for Internally Displaced Persons in Africa are particularly relevant. The Guiding Principles, while legally not binding as such, restate relevant hard law and have been recognized by the international community as “important international framework for the protection of internally displaced persons.” [5] The Kampala Convention will be binding once it enters into force. Like the Guiding Principles, the Convention covers, inter alia, those displaced by natural and man-made disasters and, in addition, explicitly mentions climate change as a triggering factor (Article 5 para. 4).
The humanitarian agencies participating in the Inter-Agency Standing Committee (IASC) adopted last year the revised version of the Operational Guidelines on the Protection of Persons in Situations of Natural Disasters.” [6] This document is not a legal instrument but a tool that identifies in detail the specific operational meaning of human rights in such situations and provides advice on practical steps disasters responders can take. While these Guidelines focus on post-disaster protection, they also contain practical guidance on measures to be taken before the disaster occurs in order to mitigate the impact of a hazard and thus to build the resilience of affected populations.
Conclusions
Strengthening the resilience of people and communities in the context of natural disasters and other environmental events is a multidisciplinary task and requires addressing a multitude of economic, social, technical and developmental challenges. While this is readily accepted by many, the notion that resilience building measures should include a human rights dimension is often neglected or misunderstood.
However, people affected by disasters, while not being able to enjoy many of the rights during and in the aftermath of disasters, do not lose their entitlements. Experience shows that minorities who are discriminated against in the provision of humanitarian and recovery assistance, women who are exposed to sexual violence in evacuation sites and shelters, youngsters who are exploited as child laborers, families who do not have access to educational, health and social services because relevant personal documentation has been destroyed or communities who cannot get their land and property back in the aftermath of a disasters are all unlikely to “resist, absorb, accommodate to and recover from the effects of a hazard in a timely and efficient manner.” In contrast, people who are able to exercise their rights remain, at least to a considerable extent, the masters of their own destiny and as such are in a much better position to safeguard and rebuild their lives.
In conclusion and paraphrasing Rousseau, I challenge you to admit that nature does not violate the human rights of people, and that if the inhabitants of the cities, towns and villages affected by natural disasters would be more efficiently protected by competent authorities and the international community before, during and after a disaster, damages to their lives would be much less.
[1] The following account as well as the quotes are taken from Russell R. Dynes, “The Dialogue Between Voltaire and Rousseau on the Lisbon Earthquake: The Emergence of a Social Science View,” in International Journal of Mass Emergencies and Disasters, 18: (2000) 97-115.
[2] European Court on Human Rights, Case of Budayeva et al v Russian Federation, applications 15339/02 et al, Judgment of 20 March 2008. See Walter Kälin/ Claudine Haenni, Disaster risk mitigation – why human rights matter, in: Ten Years of the Guiding Principles on Internal Displacement, Forced Migration Review, Issue 31, October 2008, pp. 38-39.
[3] The decision rests basically on the reasoning that “the authorities’ omissions in implementation of the land-planning and emergency relief policies in the hazardous area of” the affected town “could not be justified under the specific circumstances of the case and that there was a causal link between the serious administrative flaws […] and the death of” the victims. The Court concluded that competent “authorities have thus failed to discharge the positive obligation to establish a legislative and administrative framework designed to provide effective deterrence against threats to the right to life” (Case of Budayeva, paras. 159 and 159).
[4] ISDR, 2009 UNIDR Terminology, Disaster Risk Reduction, Geneva 2009, p. 24.
[5] 2005 World Summit Outcome, General Assembly Resolution A/Res/60/1 (2005), para. 132.
[6] UN Doc A/HRC/16/43/Add.5, available at http://ochanet.unocha.org/p/Documents/Operational %20Guidelines.pdf and https://www.brookings.edu/reports/2011/0106_operational_guidelines_nd.aspx.
