Manager, Policy and Advocacy, World Vision Australia
Rights beneath the wreckage: locating human rights discourse in response to the Asian tsunami and Hurricane Katrina
Paper delivered at the Castan Centre 'Human Rights 2005: Year in Review' conference on 2 December 2005
Please note: the opinions expressed in this paper reflect the views of the author in her personal capacity and do not necessarily reflect the position of World Vision Australia.
From the perspective of the international humanitarian and development sector, 2005 was characterized by two sets of events: the rise of the Make Poverty History Campaign (promoting the realization of the Millennium Development Goals); and the response to three devastating natural disasters (the Asian tsunami, Hurricane Katrina and the Pakistan earthquake). In this paper I will be concentrating on the latter. My argument is that the international human rights community has failed to adequately engage with the human rights of those individuals vulnerable to and affected by natural disasters. Further, I will suggest that there is an urgent need for those committed to the promotion of human rights to initiate a research agenda in order to define and articulate the rights and obligations that are at stake before, during and after disasters strike.
I will be restricting my analysis in this paper to the responses to the tsunami and Hurricane Katrina. This choice is based both on the availability of data and analysis and on the opportunity these two events provide to reflect on how context changes the discourse surrounding disaster preparation and response. Specifically, I am interested in the commonalities and differences between the public response to natural disasters in a developed country in contrast to the experience in the developing world.
While there is little doubt that 2005 constitutes an annus horribilus in the relationship between humans and the natural environment, that does not automatically mean that this is a subject that warrants the professional interest of human rights scholars. That the loss of hundreds of thousands of lives and the displacement of millions of people should generate sympathy and compassion is not under question, but that is a qualitatively different issue from whether there are human rights concerns at stake. The UN (2005, paras 18 and 23), the Brookings Institution (2005) and the University of California Berkeley (2005, 9; hereinafter UC Berkeley) have all noted the relative disinterest with which academics, practitioners and activists from the human rights community have surveyed the devastation wrought by the Asian tsunami. This lack of interest is not surprising … the shifting of the tectonic plates is not generally a matter that pushes the professional buttons of those whose primary focus is the relationship between the individual and state power.
There are at least four interrelated reasons to identify natural disasters as a topic that demands the attention of human rights scholars. Firstly, the line between natural disasters and catastrophes involving state (in)action is at best porous. Consider the famine that wracked Ukraine in the 1930s which, while in part the result of crop failure, was made substantially more lethal by the Stalinist policies of continuing to exact burdensome taxes on Ukraine even after the famine had caused widespread food insecurity (Marcus 2003), or the fact that the tsunami that struck Papua New Guinea during the 1990s was made worse by the removal of vegetation along the foreshore (Walker 1998). Governments are responsible for many of the conditions in which natural disasters occur. Secondly, given that international human rights law does not cease to apply in times of an emergency, the conditions created by natural disasters (displacement, lack of access to basic necessities, close engagement with military forces) provide a litmus test for the extent of international commitment to the realization of human rights. Thirdly, the conceptualization of those affected by natural disasters as ‘victims’ has negative implications for the kind of engagement that they can ‘expect’ from their governments and the international community. The process of reconceptualising those affected by natural disasters as rights bearers rather than victims has the potential to improve humanitarian practice and to ensure outcomes that meet the needs of survivors. Some of the key elements of a rights based approach to disasters are: the obligation to ensure non-discrimination in the relief effort and the correlative requirement that attention be paid to the specific vulnerabilities of marginalized communities; the prescription that individuals be consulted as the primary stakeholders in the recovery process; and the specification of longer term outcomes that go beyond the immediate relief phase. These factors are often critical in promoting both the speed of individual recovery and community resilience. Finally, the scale of natural disasters – the fact that they affect millions of people – also demands the attention of the human rights community. While the tsunami and the Pakistan earthquake were certainly extraordinary, consider the fact that the Red Cross estimates that there are 65.8 million flood victims and 59.3 million people suffering from drought induced famine in an average year (Walker 1998).
It is important to clarify that there is nothing that prevents and much to recommend the application of the full complement of human rights law as a framework through which to analyse natural disasters. There are two sets of voluntary codes that have been specifically designed for this purpose. The first is the UN’s Guiding Principles on Internal Displacement (1998). Drafted by a group of independent experts, the Principles are designed to address the absence of a framework for the international humanitarian response to internally displaced people. The Principles recognise several causes of displacement, including natural disasters. Although there has been some concern that the Principles are not binding, they are explicitly designed both to reflect and be consistent with human rights and humanitarian law; the legal force of the injunction contained therein is thus drawn, not from the Principles, but from human rights and humanitarian law. The second source is the Sphere Project – Humanitarian Charter and Minimum Standards (2000) – the result of a collaboration between non-state actors and NGOs. It aims to define basic practical standards that should govern humanitarian assistance in the acute phase of an emergency, specifying minimum levels for water supply and sanitation, nutrition, food aid, shelter and site selection, and health services. The Sphere Standards explicitly incorporate a rights based approach, but as with the Principles, it is a voluntary code which is not observed by all the relevant players and is lacking an enforcement mechanism.
In what remains of the paper I will raise some of the issues that I believe deserve more consideration from a human rights perspective. I will approach the issues chronologically, beginning with an examination of the period before the disaster. In order to address what I see to be a gap in literature and practice, my primary focus will be on the stage before the disaster.
It is perhaps in considering the obligations of governments before the disaster that human rights scholars have most clearly failed to take an interest in the human rights dimensions of natural disasters. And yet, if it is broadly accepted that governments have an obligation to protect, promote and fulfill human rights, then protecting the existing rights of people against the devastation of a natural disaster would seem to be consistent with the intention of international human rights law. A literature search on this obligation will yield few results. The absence of scholarship on this point stands in stark contrast to the recognition that protecting civilians from displacement through conflict is an obligation under international humanitarian law. The obligation to protect is included in the Guiding Principles, but this seems to be a consequence of the fact that the Guiding Principles cover displacement caused by situations of conflict and generalized violence as well as natural disasters, rather an intentional choice on the part of the drafters.
In practical terms the idea of protecting people from natural disasters translates into the creation of early warning systems, zoning regulations, re-vegetation programs, promoting disaster preparedness and mitigation programs and initiatives such as housing standards to help buildings withstand floods or earthquakes. Of course, in the aftermath of the tsunami there have been some references to the need to install early warning systems; the Government of Thailand has instituted a tsunami warning system in Phuket as well as a number of other monitoring systems. There has also been some limited discussion of early warning systems at the UN’s forum on the human rights implications of the tsunami, but the reference was in a paragraph that contained all the ‘other issues’ raised in the discussion, rather than part of the substantive text (2005, para 9). In what stands as the most comprehensive review to date, the University of California Berkeley’s study of the human rights of vulnerable populations mentioned early warning systems only once when detailing the Government of Thailand’s initiatives (2005, 77 and 89).
In stark contrast, the question of the failure to adequately prepare for Hurricane Katrina has been one of the major themes that emerged during the tragedy and in the first stages of the response. There has been a recognition on the part of state and non-state actors alike that more can and should have been done and that the failure to do so represented an unacceptable derogation from the ordinary expectations (rights) of American citizens. The importance of this theme was reflected in the President’s first address from New Orleans after the hurricane in which he acknowledged that while protecting New Orleans from flooding was always going to be a challenge because of its location below the sea level “the people who call it home need to have reassurance that their lives will be safer in the years to come.” Further, the President committed more federal resources both to the relief effort and to future disasters and confirmed the need to update plans at a municipal level (September 15, 2005).
There are clearly some important differences between these two natural disasters, like the fact that it was possible to track the progress of Katrina on CNN, whereas the earthquake that caused the tsunami was not front page news before it struck. Further, the US is obviously a resource rich environment. There is, however, no reason for obligation of governments to protect citizens from natural disasters to end at the international poverty line. Cuba has an excellent record in protecting its citizens from the devastating effects of the annual hurricane season. Despite being one of the poorest countries in that region, the Cuban government has employed a multidimensional program of disaster preparedness and mitigation with a social development strategy aimed at promoting equality and social solidarity (Thompson 2004). The result has been that Cuba experiences a lower death rate than both other Caribbean countries and the United States. No deaths were recorded in Cuba during Hurricane Katrina.
While the Cuban response to disasters is instructive, it is also a statistical anomaly. Data collected from natural disasters around the world suggests that high mortality rates correlate with a low rank on the UN’s Human Development Index. While only 11 per cent of those affected by natural disaster live in poor countries, they account for 53% of recorded deaths (UNDP 2004, 1); it is often poor people who die in natural disasters. In the aftermath of Hurricane Katrina, poverty was identified as one of the defining characteristics that prevented people from evacuating from the danger area. One in two residents in New Orleans did not own a car (Sherman and Shapiro 2005). The disaster plans of the city were simply not adequate to deal with that reality. A human rights perspective demands that policies and programs be created to attend to the specific needs and experience of people living in poverty.
The radical challenge presented by international human rights law is to ensure that the value of the human person is not dependent on their membership of a political community. If the subject of human rights is to be the individual human being then their right to be protected from natural disasters cannot be dependant on where they were born. While there is no doubt that disaster preparedness can be assisted by the use of new and expensive technologies, the lack of resources is by no means an insuperable barrier to developing effective disaster preparedness and mitigation strategies. In natural disasters within both the developing and the developed world it is family members and neighbours who are of most direct assistance in a crisis. Promoting effective disaster preparedness plans at a local level need not be a multi-billion dollar exercise. If, however, resource limitations prevent the development of these plans then the extra national obligations of the human rights treaties provide that the international community is under an obligation to render assistance (Nowlan and Costello 2005, 159-163).
As always in the case of human rights law, the primary responsibility for disaster preparedness initiatives lies with national governments. Community based disaster preparedness and mitigation strategies are particularly important for people living in poverty who may lack the individual resources either to escape from the disaster or to provide a buffer against potential losses. The state does not replace individual and community response mechanisms, but it does have a role in ensuring that human rights do not become solely defined as an individual responsibility during a disaster. State action can include scaling up and networking local responses and ensuring that vulnerable individuals (for example, children, the elderly, the disabled and those in institutional care) are not ‘left behind’.
Where human rights advocates have focused on natural disasters they have tended to concentrate on the right to assistance in times of an emergency. Hardcastle and Chua (1998), for example, propose the creation of a multilateral treaty to affirm states’ obligations either to provide assistance or to facilitate the provision of that assistance.(i) Such measures are critical in saving lives in the aftermath of a disaster; the absence of coordinated relief efforts in the first 48 hours after an emergency can lead to a rise in the death rate and increase the risk of disease and infection. While timely and effective delivery of appropriate aid is essential, my argument is that an exclusive focus on the relief phase risks overlooking the advantages of a preemptive policy approach. An analogy for the kind of change required in the approach to natural disasters can be found in the revolution that has taken place in response to the hazard of fire over the last couple of centuries. The origin of urban fire fighting can be traced to the development of the insurance industry – teams of fire fighters were dispatched to put out blazes at property under the protection of private insurance companies. Teams of fire men would respond to a disaster. While some were probably motivated by a genuine desire to assist those in need, there was fierce competition between the suppliers. Fights would sometimes break out between fire fighters about who would have the right to put out a particular fire, even while it raged in the background (AngliaCampus 2006). Since that time, there has been a gradual recognition that the more effective approach is to focus on fire prevention. The responsibility has been squarely in the hands of the state to enact a series of regulatory standards in order to effect a transition from a culture of fire management to a culture of prevention. The introduction of building standards, smoke alarms in new homes, fire extinguishers in work places and even those pesky annual fire drills have significantly reduced the incidence of domestic and industrial fires (Wermeil 2000). This is precisely the kind of change that I am suggesting needs to take place in response to natural disasters.
In relation to addressing the immediate aftermath of the disaster, UC Berkeley has produced an excellent report on the human rights situation in the period directly following the tsunami (2005). Two of their central findings are as follows: firstly, there is an urgent need for governments and humanitarian practitioners to take pre-existing human rights vulnerabilities into account because of the risk that the disaster may exacerbate human rights violations. The UC Berkeley report highlights the particular needs of the Dalits in India, who have reported that they have been unable to access aid (2005, 16-21), and unregistered Burmese migrants in Thailand whose illegal status places them at the margins of the relief effort (2005, 22-82). This finding is as relevant to a natural disaster in a developed country as in the case of the tsunami. In investigations following the response to Hurricane Katrina, Human Rights Watch (2005) detailed the case of prisoners in New Orleans who were abandoned in a locked correctional facility. Before being rescued, it was reported that the water reached the shoulder height of prisoners on the ground floor. From a practitioner perspective, the report points to the need to undertake a human rights mapping process as part of the disaster response in order to ascertain which groups are likely to be the most vulnerable and to design strategies to address those needs.
Secondly, the report found that there are significant problems with discrimination and inequity in aid distribution and a corresponding lack of accountability on the part of government and private providers for allegations of corruption and maldistribution. The report found that, on the whole, aid delivery was poorly coordinated and that there was insufficient or non-existent consultation with affected communities. It is worthwhile noting that the suggestion that aid should be provided on a non-discriminatory basis or that community participation and accountability mechanisms are an essential component of effective aid and development programs are far from new. Indeed, from the perspective of the NGO community, these principles are foundational to contemporary ideas about good practice. Further, they are often part of the standard requirements of donor funding. The fact that the report highlights the failure to deliver on these principles is testament to the scale of the logistical challenge posed by the tsunami. Further, it begs the question of whether government plans for coordinating and monitoring the disaster response are adequate to the potential of another disaster of this magnitude.
I would like to highlight one concern with the report which is relevant both to the recovery and reconstruction phases of disaster relief programs. Borrowing a phrase from Bruno Simma and Philip Alston (1992, 94), it is possible to detect a certain “normative chauvinism” in the choice of the human rights that the report regards as worthy of protection. Referring to the situation in Indonesia, Cohen, Nababan and Widjaya argue that the pre-existing conflict in Aceh has deprived civilians “of their ability to earn their living … the conflict has stifled the economy of the region, and poverty has been the common condition for most of the residents of this fertile land rich with natural resources” (2005, 29). The report goes on to say that the prevailing human rights violations included killings, arbitrary detention, torture, and civilian kidnapping (2005, 29). Under this construction, poverty is part of the landscape – the inescapable corollary of the conjunction of rich natural resources and conflict – rather than representing a human rights issue that requires consideration and monitoring. The question of which human rights merit the attention of scholars and practitioners is important because it will structure how vulnerable populations are identified and the kind of outcomes that can be expected through the promise of realising human rights.
The question of how poverty is understood is relevant to the longer term reconstruction process because it begs the question of the conceptual framework being applied to the reconstruction outcomes. Both within common law and within the insurance industry, lawyers are accustomed to the notion of restoring an individual to the position they were in before an adverse incident took place. This may be entirely appropriate within middle class communities in the developed world, but when the original condition is poverty, is it appropriate to seek to return people to that condition? Almost as a matter of reflex the response to livelihood reconstruction has been to replace what was lost – to give fishers back their boats – without consideration to the sustainability or alternative options that might be available. If survivors of natural disasters are understood to be rights bearing citizens, then governments and other service providers should be required to do more than meet immediate needs or restore what was lost. When viewed from the perspective of human rights law, relief efforts should not just be conceptualised as an opportunity to relieve immediate suffering. The normative content of human rights law requires that reconstruction is viewed within the context of the obligation to promote the full realisation of the rights of men, women, girls and boys in survivor communities. A charitable approach to disaster response emphasises the alleviation of immediate suffering. While this is no doubt important, the protection, promotion and fulfilment of human rights involves a higher standard. The concept of ‘progressive realisation’ requires that the government, donors and community members enter into a dialogue about the rights that will be pursued over a period of time. The fulfilment of social and economic rights should be pursued through the application of the ‘maximum available resources’, including those provided by the international community until such time as the rights of all, particularly vulnerable individuals, are secure.
My aim in this paper has been to raise a series of issues that merit further investigation. The human rights community has effectively ‘dropped the ball’ when it comes to an analysis and response to the human rights implications of natural disasters. The catastrophic natural disasters of 2005 have signalled a need to revisit previous priorities and consider a new practical research agenda that addresses the intersection between nature and the power of governments and non-state actors to impact the lives of rights bearing individuals.
AngliaCampus (2006) “The beginnings of organised fire fighting”, produced in association with the London Fire and Civil Defence Authority. Available at: www.angliacampus.com/education/fire/london/history/begin.htm.
Brookings Institution (2005) Statement given at a meeting hosted by Women in International Security – “Warning Systems, Reconstruction and Stability: Durable solutions in the aftermath of the tsunami tragedy”, March 21. Available at: www.brookings.edu/dybdocroot/fp/projects/idp/20050227_tsunami.pdf.
Bush, George, W. (2005) Speech: “President Discusses Hurricane Relief in Address to the Nation”, September 15. Available at: www.whitehouse.gov/news/releases2005/09/print/20050915-8.html.
Marcus, David (2003) “Famine Crimes in International Law” in American Journal of International Law, Vol. 97, Iss. April, pp. 245-281.
Hardcastle, Rohan J., & Chua, Adrian T. L, (1998) “Humanitarian Assistance: towards a right of access to victims of natural disasters” in International Review of the Red Cross, No. 325, pp. 589-609.
Human Rights Watch (2005) “New Orleans: Prisoners Abandoned to Floodwaters”, September 22. Available at: www.hrw.org/English/docs/2005/09/22/usdom11773_txt.htm.
Sherman, Arloc and Shapiro, Isaac. (2005) “Essential Facts About the Victims of Hurricane Katrina” from the Center on Budget and Policy Priorities, September 19. Available at: www.cbpp.org.
Nowlan, Kirsty & Costello, Tim (2005) “When Right Equals Rights: The international obligation to provide assistance to developing countries” in Alternative Law Journal, Vol. 30, No. 4, pp. 159-163.
Thompson, Martha & Gaviria, Izaskun (2004) “Weathering the Storm: Lessons in Risk Reduction from Cuba”, Oxfam America. Available at: www.oxfamamerica.or/cuba.
United Nations (2005) “Meeting Report” 8th Practitioners’ Forum on Human Rights in Development: Human rights implications of the 26 December tsunami, March 4.
University of California Berkeley (2005) After the Tsunami: Human Rights of Vulnerable Populations, East West Centre. Available at: www.hrcberkeley.org/afterthetsunami/pdfs/tsunami_full.pdf
Walker, Peter (1998) “Victims of natural disaster and the right to humanitarian assistance: a practitioner’s view” in International Review of the Red Cross, No. 325, pp. 611-617.
Guiding Principles on Internal Displacement, E/CN.4/1998/53/Add.2, Feb 1998. Available at http://www.ohchr.org/english/issues/idp/standards.htm.
The Sphere Project, Humanitarian Charter and Minimum Standards in Disaster Response, 2000 (Sphere Handbook). Oxford: Oxfam Publishing. Available at http://www.sphereproject.org/handbook/hdbkpdf/hdbk_full.pdf.
i It is possible to argue that the provision of emergency relief can be directly extrapolated from existing commitments, so the extent to which an entirely separate agreement is a matter for further debate.