Disaster Management and Law - A Human Rights Perspective

INTRODUCTION

The term disaster as defined by United Nations is “a serious disruption of the functioning of a society, causing widespread human, material or environmental loss, which exceed the ability of the affected society to cope using its own resources.” The recent humanitarian crisis caused by disaster situations have raised new challenges, in particular in relation to the protection of the basic human rights of disaster affected populations and victims at times of disasters. The need for ensuring human security in disaster management through the protection of human rights and promotion of good governance policies is one of the important aspects in development of rights based approach. This adds a new dimension to the existing studies relating to preparedness, response including relief and rehabilitation, mitigation and ensures effective steps for disaster management. The human rights framework creates empowerment through legal tools and institutional structures in formulating ways by judicial and other forms of institutional intervention to protect the rights of people who could be affected by disasters as well as the victims of disasters. The disasters caused to mankind have proved that the repercussions that arise from all kinds of disasters would establish a co-relationship between sustainable development and disaster management. The integral facet of development implies the urging need for protection of human rights of individuals during disaster which is enshrined in the constitutional ethos. This paper attempts to analyze and highlight on the key areas of legal framework of disaster management from a human rights perspective.

CONSTITUTIONAL MANDATE FOR RIGHT TO REHABILITATION

The role of law in disaster management is prima facie concerned with the enforceable right of a disaster victim to rescue, relief and rehabilitation. The Constitutional concern for social justice is to accord justice to all sections of the society by providing facilities and opportunities to remove handicaps and disabilities from which the poor are suffering and to secure dignity of their person. The Indian Constitution declares that India is a welfare state, i.e., a state that promotes the general welfare of the people. Especially after the Maneka Gandhi Case[1], courts have expanded the scope of ‘life’ and ‘personal liberty’ under Article 21. The Supreme Court has also interpreted the words ‘procedure established by law’ to include both the procedural and substantive legal requirements of fairness, justness and reasonableness. Article 21[2], which guarantees the protection of life and personal liberty, is the repository of all important human rights. From this, the Supreme Court has deduced an affirmative obligation on the part of the state to preserve and protect human life. Right to life being the most important of all human rights implies the right to live without the deleterious invasion of pollution, environmental degradation and ecological imbalances.[3]

A collective reading of judgments will lead to the logical conclusion that the right to rescue, relief and rehabilitation is a fundamental right guaranteed under Article 21.[4] The doctrine of parens patriae is the inherent power and authority of a legislature to provide protection to the person and property of persons and property non sui juris, such as minor, insane and incompetent persons. The doctrine of parens patriae meaning ‘father of the country’ was applied originally to the king and is used to designate the state referring to the sovereign power of guardianship over persons under disability. The concept of parens patriae is explained as the right of the sovereign and imposes a duty on the sovereign, in public interest, to protect persons under disability who have no rightful protector. The courts in India have applied this doctrine in several cases. Therefore it is construed that, under the doctrine of parens patriae the state is obliged to render adequate relief and rehabilitation to the victims of disaster. It is often reiterated that dispute redressal and protection of human rights need to be treated as an integral part of the disaster management exercise, after a disaster, the enforceable right of the people to get the relief and rehabilitation needs to be recognised.

A HUMAN RIGHTS APPROACH TO DISASTER MANAGEMENT: INTERNATIONAL LEGAL FRAMEWORK

The climate science has provided unchallenged evidence that climate change has enhanced and will continue to enhance the frequency and intensity of natural hazards. These hazards, when paired with poor preparedness and inadequate response strategies, result in disasters that disrupt human life, affect livelihoods, overwhelm capacities to respond, and cause forced displacement. The United Nations High Commissioner for Refugees (UNHCR) has warned that climate change will add to the scale and complexity of human mobility and displacement. [5] The United Nations Inter-Agency Standing Committee (UN-IASC) has actively emphasized the rights and humanitarian dimensions of climate change and disasters within the context of the global climate talks. [6] The Human rights treaty bodies, including the Human Rights Committee, monitoring the International Covenant on Civil and Political Rights and the Committee on the Elimination of Racial Discrimination, monitoring the International Convention on the Elimination of All Forms of Racial Discrimination, have also emphasized the obligation to protect rights in natural disaster preparedness and response when reviewing the United States' application of these treaties in the aftermath of Hurricane Katrina. [7] The European Court of Human Rights has ruled that states have obligations to implement preventive measures to protect people from the risks posed by disasters in order to protect the right to life. [8]  Even though human rights treaties do not include specific provisions on the protection of people displaced by disasters, under human rights law, states have the duty to promote universal respect for, and observance of, all human rights and freedoms without distinction as to race, sex, language, or religion for all people living in its jurisdiction.

The International Strategy for Disaster Reduction (ISDR), guided by the internationally agreed Hyogo Framework for Action, aims to build the resilience of communities and nations through building capacities to use proven tools for reducing disaster risk. The Hyogo Framework for Action has three strategic goals in disaster management viz: integration of disaster risk reduction into sustainable development policies and planning, development and strengthening of institutions, mechanisms and capacities to build resilience to hazards, systematic incorporation of risk reduction approaches into the implementation of emergency preparedness, response and recovery programmes. The concept of Human Rights protection is widely acknowledged as a crucial element of humanitarian strategies at times of emergency and disaster situations, the longer-term aspects linked to the promotion and definition of a human rights-based approach in disaster prevention and reduction is still limited. [9]

DISASTER MANAGEMENT AND REDUCTION – A HUMAN RIGHTS PERSPECTIVE

The critical issues that arise in disaster management and reduction interalia include the following key areas of concern viz: non-discrimination of disaster affected victims based on gender, age, ethnicity etc., right to equality in matters of legal protection, shelter and housing, right to security, access to health services, clean water, education, compensation etc. which are considered as integral facet of fundamental rights as enshrined under the Constitution of India.  In a landmark case of Vincent Parikurlangara v. Union of India[10], the Hon’ble Supreme Court held that the right to maintenance and improvement of public health is included in the right to live with human dignity enshrined in Article 21. A healthy body is the very foundation of all human activities. In a welfare State it is an obligation of the State to ensure the creation and sustaining of conditions congenial to good health. The liberal interpretation of this judgment on lines of human rights based approach would explicitly mean that during the times of disaster it is the prime duty and responsibility of the State to provide medical care and access to health services to the victims of disaster.

Disasters cause mass destruction taking away lives, livelihoods and shelter and leave a profoundly destabilizing effect on the social fabric of communities in the aftermath manifesting itself in increased vulnerabilities of the most marginalized communities. The foremost concern in disaster management in these circumstances is to organize urgent relief to address immediate needs and to provide support to the affected population. These measures also require to be foresighted in terms of rehabilitation and development as disaster management transition from emergency disaster response, to relief operations, to rehabilitation, and ultimately, to reconstruction and development. Humanitarian assistance therefore is a complex process involving diverse stakeholders and critical decision-making in volatile situations fraught with several ethical dilemmas posing a significant challenge to planning and executing relief and rehabilitation work in post disaster contexts, be it floods, earthquakes or social aggression and these decisions have lasting impacts on the affected communities.

The rights available to every individual who is affected by any disaster would include a wide range of rights and a comprehensive human rights protection ranging from the right to protection and assistance at times of emergencies under the protective shield of the international humanitarian laws and national legislations. The communities living in disaster-prone areas have the right to protect their development efforts and achieve sustainable development. The Yokohama World Conference on Natural Disaster Reduction (1994), a mid-term review of the International Decade for Natural Disaster Reduction, placed greater emphasis on the role of social sciences in research, policy development and implementation and emphasized the links between disaster reduction and sustainable development.[11] The incidence of natural, as well as related environmental disasters has increased in the 1990s. In 1999 alone, there were more than 700 disasters with widespread economic and social damage leading to the death of approximately 100,000 people. When disasters strike, the poor and socially disadvantaged suffer the most, and are least equipped to cope with the impact. There is a direct link between environmental management and risk reduction, disaster preparedness, mitigation and recovery, as natural disasters have a long-lasting adverse impact on the environment which is directly proportionate to the human rights issues of disaster affected persons.This can be achieved through effective disaster risk reduction. As such, a specific human rights based approach for disaster risk reduction should be developed.  

The human rights perspective of disaster management would further encompass in itself certain other basic rights such as right to development, right to an equal access to education for all in particularaccess to school for those living in disaster affected areas, provision for safe schools and disaster-resilient education infrastructures, to allow all children to learn about disasters and risks to be more aware of surrounding threats and be better prepared at times of disasters. The newly emerging challenge with reference to human rights based issues of climatic and environmental refugees and internally displaced populations. The impact of climate change on increased frequency and intensity of disasters has led to wider movements of populations to safer areas. [12] There is an urgent need to address on the vital issues regarding the protection of environmental refugees and Internally Displaced People’s (IDP) human rights.

The human rights perspectives in disaster management programme implementation include certain elements like fixing up benchmarks, targets and indicators in Disaster Risk Mitigation and Disaster Risk Reduction that can capture the real dimension of human rights oriented issues. The promoting of human rights, especially the protection of fundamental ones as the non-discriminatory principle, in front-line agencies mandates as well as in national Disaster Risk Mitigation and Disaster Risk Reduction policies can make the legal framework more efficient and effective. The existing legislation, codes and guidelines must be expanded in order to include a human right perspective in Disaster Risk Mitigation and Disaster Risk Reduction measures.

The disaster management programmes typically focus on relief distribution and rehabilitation in a time bound projectivised manner rather than with a long-term sustainable development approach embedded within a broader human rights perspective. The reasons for such lacunae range from sheer ignorance to lack of knowledge and skills working with a human rights framework. A comprehensive disaster management programme must reflect sensitivity to the complex human and cultural contexts, international relations, technological developments, environmental vulnerability and interdependency and tensions and shifts in the fundamental concepts are articulated and understood in a programmatic framework. This is done because all humanitarian assistance is oriented to sustainable development; to protect the rights of vulnerable groups must inform all stages of the rehabilitation process from early recovery through to long-term reconstruction and development. The key objective of such assistance is to transform the status of the surviving communities from extreme vulnerability and dependency to self sufficiency and wellbeing.

 RIGHTS BASED APPROACH: A CORE OF DISASTER MANAGEMENT LAW

In this scenario it is imperative to integrate human rights and other international legal tools laying an inclusive value framework for establishing conditions that restore the dignity of the victims and protect their rights. A rights based approach is not an add on in later stages of disaster management, but should constitute the very core of management practices. This will enable response planners to address systemic injustices that contribute to continuing poverty and social unrest. Disaster management programmes need to be informed of the international legal standards pertaining to key aspects of disaster response including human rights, the rights of vulnerable groups such as women, children, etc. While existing human rights obligations already require nation, states to take measures to mitigate the risks of natural or man-made disasters, it is important to recognize that failing to take feasible measures that would have prevented or mitigated the consequences of foreseeable disasters amounts to a violation of the right to life and therefore incurs the responsibility of the state under international law. These human rights standards play a critical role in empowering actual as well as potential survivors of natural disasters to demand necessary measures to prevent deaths by the state. For humanitarian agencies they highlight the relevance of a rights-based approach to disaster management.

The World Conference on Natural Disaster Reduction was held at Yakohama in Japan in May, 1994 adopted the Yakohama Strategy for a Safer World: Guidelines for Natural Disaster Prevention, Preparedness and Mitigation. As pointed out in the session by the U.N. Under-Secretary-General for Humanitarian Affairs, “Earthquakes and cyclones will happen. There is nothing we can do about that, but we can be prepared for them when they do strike. Disaster reduction can take place at any point in the process which we call disaster. It can comprise prevention and preparedness, relief and development as well as measures to reduce the effects of such disasters.”[13] The outcome of the conference affirms that the impact of natural disasters in terms of human and economic losses has risen and society has become more vulnerable to such disasters over the past two decades, earthquakes, volcanoes, landslides, tidal waves, droughts and other natural events had killed some million people and inflicted injury, displacement and misery on countless more. It was pointed out that environmental protection as a component of sustainable development which is an imbibed feature of human rights of individuals is imperative in the prevention and mitigation of natural disasters.

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.[14] In the modern days, a long sighted policy of the United Nations followed by the local government to manage the disaster at the expense of pooled fund only can substantively reduce damage to the natural biodiversity of the globe. Global Policy Forum (GPF) founded in 1993 is an organization having a consultative status at the United Nations is seeking accountability of international organization such as the United Nations and strengthen International Law.

DISASTER MANAGEMENT - INDIAN LEGAL SCENARIO

In 2005, India passed its Disaster Management Law known as the Disaster Management Act, 2005 which came in to force on 23.12.2005. The Act establishes a National Disaster Management Authority and other authorities at various levels to coordinate their activities in disaster management. The Act defines "disaster management" [15] means a continuous and integrated process of planning, organising, coordinating and implementing measures which are necessary or expedient for mitigation or reduction of risk of any disaster or its severity or consequences; [16] preparedness to deal with any disaster; [17] rehabilitation and reconstruction [18]. The Act interalia deals with the provisions regarding protection of human rights by virtue of providing specific guidelines with reference to minimum standards of relief to be provided to persons affected by disaster as recommended by the National Authority, which shall include the minimum requirements in relation to shelter, drinking water, medical and sanitation [19]. This is a distinct feature of the Disaster Management Act, 2005. These legal provisions are considered to be the sacrosanct legislative measures as the intent of the legislature in enacting this Act is to provide for the effective management of disasters and to uphold the human rights of the disaster affected people. The Disaster Management Law is a legal umbrella of the country’s disaster management implementation that includes a development based approach which ensures better protection of human rights of individuals during disaster situations. 

CONCLUSION

Therefore it is concluded that the need of the hour is to promote a people-centered human rights based disaster risk reduction strategies. The vulnerability analysis in disaster management shall consider human rights issues among their social, economic and cultural criteria. Disaster management fundamentally deals with a response to human misery and losses of people’s livelihoods and assets, while disaster risk management is concerned with mitigating or preventing such losses; both processes tend to be rather anthropocentric. The response towards disaster management must arise from all the sides with a humanitarian approach so as to attain the objectives of human rights based perspective during times of disaster.

AIR 1978 SC 597

[2] “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

[3] S.Shanthakumar, Introduction to Environmental Law (Wadhwa & Co, Nagpur 2007) p.91

[4] B.J.Diwan vs. State of Gujarat  (2001)

[5] U.N. High Commissioner for Refugees (UNHCR), Climate Change, Natural Disasters and Human Displacement:   A UNHCR Perspective 1 (2009)

[6] 2011 Tulane Environmental Law Journal,  24 Tul. Envtl. L.J. 239

[7] Advocates for Environmental Human Rights et al., The Human Rights Crisis in the Aftermath of Hurricane Katrina 1 (2010)

[8] Budayeva & Others v. Russia, App. Nos. 15339/02, 21166/02, 11673/02, 15343/02, Eur. Ct. H.R. (2008)

[9] "Hyogo Framework for Action 2005-2015: Building the resilience of nations and communities to disasters p.6  www.unisdr.org/eng/hfa/hfa.htm   last retrieved on 10/02/2011

[10] AIR (1989) SC 142

[11] Environmental Management and the Mitigation of Natural Disasters: A Gender Perspective, Report of the Expert  Group Meeting, Ankara, Turkey, 6 – 9 November 2001, United Nations Division for the Advancement of Women (DAW) Inter-Agency Secretariat of the International Strategy for Disaster Reduction (UN/ISDR) p.1

[12] Walter Kalin Report to the Representative of the UN SG on the human rights of the IDPs:“Protection of Internally Displaced persons in Situations of Natural Disaster” - 5 March  2009 p.9

[13] Dr.S.K.Kapoor, International Law and Human Rights (Central Law Agency, Allahabad 15th Edn, 2004) p.415-416

[14] “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)

[15] Section 2(e)

[16] Section 2(e) (ii)

[17] Section 2(e) (iv)

[18] Section 2(e) (viii)

[19] Section 12

C.E.Pratap M.L., PGDPMIR