Protection in natural disasters Office of the High Commissioner of Human Rights – Nepal Kathmandu 23 October 008

Introduction  Human rights protection is the responsibility of the State  Human rights have to be the legal underpinning of all humanitarian work in natural disasters  Human rights violations can be deliberate but also occur as a result of neglect and inadequate policies  Disasters usually exacerbate pre-existing inequalities and problems

Aims  Human rights principles and protection standards integrated in disaster management  Measures to ensure meaningful consultation and participation of affected persons and communities  Benchmarks for monitoring and assessing needs  Basis for humanitarian actors in dialog with host governments about their obligations to victims of natural disasters

Definition of Protection Most widely accepted definition: All activities aimed at ensuring full respect for the rights of the individual in accordance with the letter and the spirit of the relevant bodies of law (i.e. National law, regional instruments, international human rights law, international humanitarian law and refugee law) 4

Protection activities of the international actors  Responsive : aimed at “stopping, preventing or mitigating a pattern of [ongoing] abuse“;  Remedial: aimed at restoring people’s dignity and ensuring adequate living conditions subsequent to a pattern of violation, through rehabilitation, restitution, compensation and repair; or  Environment building : aiming to create and/or consolidate an environment – political, social, cultural, institutional, economic and legal – conducive to full respect for the rights of the individual”

Why Human Rights? Because natural hazards affect individuals and communities thus creating disasters for human beings. Because people affected by natural disasters remain residents and citizens of their countries with the same rights as others who have not been affected, but with particular needs that are different. Because humanitarian and recovery activities do not take place in a legal void. Because human rights may be endangered and violated in situations of disasters. 6

Human Rights: The sources 1. Universal Declaration of Human Rights (UDHR) 2. International human rights conventions: Covenant on Economic, Social and Cultural Rights Covenant on Civil and Political Rights Conventions protecting specific groups of persons (women, children, persons with disabilities, migrant workers and their families, refugees) Conventions protecting specific rights (prohibition of genocide, torture, disappearances, racial discrimination) 3. Regional (African, American, Arab, European) human rights conventions, relevant provisions of ASEAN Charter) 4. National constitutions/laws guaranteeing human rights

Human Rights: The sources Caveat:  International Humanitarian Law (IHL) is not the law of humanitarian action but the law regulating the conduct of combatants and their protection as well as that of the civilian population in armed conflicts.  International Humanitarian Law does not regulate the protection of persons affected by natural disasters (although it remains applicable for the protection of persons against the effects of armed conflict if a natural disaster occurs during such conflict ).

Human rights obligations of States States have the triple duty to respect, protect and fulfill the human rights of persons under their control (jurisdiction).

Human Rights obligations of States Duty to respect (always) = obligation to not actively violate right Duty to protect (if the State has the knowledge and capacity) = duty to take protective measures (legal/operational) for people threatened in the enjoyment of their rights by third parties or specific situations Duty to fulfil (if the State has capacity) = duty to offer certain services or goods Duty not to discriminate = duty not to disadvantage people for reasons linked to their gender, religion, ethnic origin, etc.

ObligationRight to foodRight to life Duty to respect Not to hinder access to available food / not to use food as a means of pressure or coercion Not to kill Duty to protect Protect single women from being hindered to access food assistance Alert systems / evacuations Duty to fulfil Distribution of foodRisk reduction measures 11 Human rights obligations in practice

Part I: A Human Rights Based Approach to Humanitarian Action A human rights-based approach to relief and recovery: Places the human being at his/her needs at the centre of humanitarian action instead of structures/mandates Requires the authorities and humanitarian actors to recognise that the beneficiaries are not simple objects of charity but people with rights who need to be consulted and be active participants in the decisions that concern them Identifies the rights holders and the duty bearers and thus attributes responsibilities Helps to improve the effects of humanitarian action

Human rights based approach to humanitarian action A human rights-based approach to humanitarian action uses human rights as a framework: To systematically analyse the vulnerability of the people affected by natural disasters and to identify their specific needs To ensure that humanitarian action is non-discriminatory To ensure that humanitarian action is adequate 13

Human rights based approach to humanitarian action Non discriminatory humanitarian action means that it is adapted to the particular needs of the persons or communities. It does not mean that everyone needs to have the same thing. Adequate humanitarian action means that it is (i) available; (ii) accessible; (iii) acceptable; and (iv) adaptable. 14

Protection: Identifying vulnerable groups Women Older persons Disabled Single Parent Households Children IDPs 15

Non-discrimination  No discrimination between displaced persons in camps and those staying with host families.  Disaster relief and assistance should not create inequities between the standard of services available for populations affected by disaster and for non-affected communities in the surrounding areas.  All members of affected communities should have equal access to information regarding disaster relief and recovery strategies. 16

Non-discrimination  Special care for young children is justified by their specific vulnerability and needs and does not constitute age-based discrimination  Distribution of tools and seeds to male heads of household only but not to single mothers with access to land cannot be justified and constitutes gender-based violence  Setting priorities in providing humanitarian assistance obased on criteria of need and accessibility is not discriminatory obased on ethnic or political consideration is discriminatory

The right to be consulted and to participate For both practical and legal reasons, all affected communities, without discrimination, should have the opportunity to be consulted and to participate in the planning and implementation of the various stages of the disaster response.

Community-based, participatory monitoring models  Complaint mechanisms in camps and settlements  Regular public meetings with local officials, NGOs, international agencies  Village-based consultations  Separate fora for women  Mechanisms to ensure accountability and an immediate response to allegations of human rights abuses

Part II: Protection of Specific Human Rights Protection of life, security and dignity Protection of rights related to basic necessities Protection of other economic, social and cultural rights Protection of other civil and political rights

 Example: The duty to protect may entail the obligation to evacuate those potentially affected by natural disasters. Identify areas especially endangered in cases of natural disasters; plan and implement measures such a protective shelters Encourage govt. counterparts to establish criteria, consistent with the priniciple of proportionality, for deciding on justification of involuntary evacuations A: Life, security and physical integrity: Operational steps:

 Planned and designed with the full participation of women.  Housing and shelter design, location and lay-out;  Lighting, fencing and other security measures;  Location of and access to water points, bathing and sanitation facilities, sources of fuel, food distribution points, health, education and other community facilities.  SGBV awareness A. Safety and security of women and girls

Provision of adequate food, water and sanitation, shelter, clothing and essential health services: Available Accessible Acceptable Adaptable  Link to Sphere standards B: Rights related to basic needs

 Examples: Needs-based assessments as a basis for prioritization in assistance Non-discrimination Rights to adequate standard of living (minimum in natural disasters: essential food and water, basic shelter and housing, and appropriate clothing Right to health (minimum in natural disasters: essential medical services and santitation B: Rights related to basic needs

Operational steps for:  Facilitating assistance  Assistance to women  Assistance to groups with particular needs  Food  Non-food items  Water and sanitation  Shelter and housing  Health (general)  HIV/AIDS B: Operational steps: Rights related to basic needs

C. Protection of Other Economic, Social and Cultural Rights C.1 Education C.2 Property and possession C.3 Housing C.4 Livelihood and work

 Examples Return of children to school as early as possible Accessible procedures to reclaim ownership of property Community-based measures for meaningful consultation and participation in rehabilitation of sources of livelihood  Link to early recovery mechanisms to provide for livelihood opportunities C. Other economic, social and cultural rights: operational steps

D. Other Civil and Political Rights D.1 The right to be recognized as a person before the law - Documentation D.2 Freedom of movement and right to return D.3 Family unity, dead and missing persons D.4 Freedom of expression, assembly, association, religion D.5 Electoral rights

 Examples: Encourage authorities to have a flexible approach to replacing lost documents and establish mechanisms to quickly replace missing documentation Ensure and monitor return, resettlement, or integration under conditions of sustainability, saftety and dignity Ensure right to choose where one wants to settle and obligation for humanitarian community to assist the choice in a free and informed manner Monitor post-disaster relocation and resettlement D: Other civil and political rights: operational steps

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