Overview of International Law and Standards for Protection in Natural Disasters

HOW DO NATURAL DISASTERS AFFECT HUMAN RIGHTS? Lack of safety and security (e.g. rampant crime, secondary impacts of natural disasters, etc) Gender-based violence; Unequal access to assistance, basic goods and services and discrimination in aid provision; Abuse, neglect and exploitation of children; Family separation, Loss/destruction of personal documentation and difficulties to replace it, in particular due to inadequate birth registration mechanisms; Inadequate law enforcement mechanisms and restricted access to a fair and efficient justice system; Lack of ineffective feedback and complaint mechanisms; Unequal access to employment and livelihood opportunities; Forced relocation; Unsafe or involuntary return or resettlement of persons displaced by the disaster; Lack of property restitution and access to land.

Why a human rights based approach to protect? Provides the framework and necessary standards for humanitarian assistance activities (ex: human dignity, non discrimination..) Enhance the protection value of assistance activities (food and adequate housing for women and children: reduction of risk of sexual explotation, child labour…)

CONTENT OF THE PRESENTATION International Norms on Domestic Disaster Response Int’l “Soft Law” Instruments on Domestic Disaster Response Definition of protection Responsibilities on protection Vulnerability of people: Challenges in protection issues Coordination in emergency response: the Cluster approach UNHCR in Haiti

Human rights principles We the peoples of the United Nations [are] determined -  .. to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small (the United Nations Charter ) International human rights are: Legal rights guaranteed by international law Applicable to all human beings Applicable at all times – in peace, armed conflict, in situations of natural disasters

Sources of Human Rights Universal human rights conventions   Regional human rights conventions  National constitutions/laws guaranteeing human rights  

The United Nations Declaration on Human Rights Preeminent document on international human rights standards Serves as the springboard for treaties pertaining to human rights Article 1 All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood

Core International HR Treaties ICESCR = Economic, Social, and Cultural Rights ICCPR = Civil and Political Rights CRC = Convention on the Rights of the Child CEDAW = Elimination of Discrimination Against Women CRMW = Rights of All Migrant Workers CRPD = Rights of Persons with Disabilities CAT = Convention Against Torture CPPED = Protection from Enforced Disappearance CERD = Elimination of Racial Discrimination

INTERNATIONAL CONVENANT on ECONOMIC, SOCIAL and CULTURAL RIGHTS (ICESCR, 1966) Sets out economic, social, and cultural guarantees: Principle of non discrimination Right to adequate food, adequate shelter, clothing Right to health care (right of everyone to the enjoyment of the highest attainable standard of physical and mental health) Right to adequate standard of living Specially protected persons, Article 10 The States Parties to the present Covenant recognize that: The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group (…). Special protection should be accorded to mothers during a reasonable period before and after childbirth. (…) Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. (…) Guarantees concerning work, social welfare, education and partecipation in cultural life

INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (ICESCR) Principle of non-discrimination, Article 2 (…) The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 3 The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights et forth in the present Covenant. Minimum standard of living, Article 11 The states Parties to the present covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. (…) The states Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take individually and through int’l co- operation, the measures (…) which are needed: To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, (…).

INTERNATIONAL CONVENTION ON CIVIL AND POLITICAL RIGHTS (ICCCPR, 1966) Sets a catalogue of civil and political rights: Right to self determination Right to non discrimination Right to life, Right to physical integrity (No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment) Right to recognition before the law Right to political participation, Right to freedom of movement, Right to choice of residence, Protection of the family (The family is the natural and fundamental group unit of society)

Int’l “Soft Law” Instruments on Domestic Disaster Response - Overview - Guiding Principles on Internal Displacement (1998) Principles on Housing and Property Restitution for Refugees and Displaced Persons (Pinheiro Principles 2005) Protecting Persons Affected by Natural Disasters: IASC Guidelines on Human Rights and Natural Disaster (2011) As such, all documents: are not binding, even though they contain binding international law obligations under treaty and customary law (they are consistent with international human rights law and international humanitarian law and international refugee law) address both international and domestic response address governmental and non-governmental actors in humanitarian action explicitly acknowledge the primary responsibility of national Governments and domestic authorities

Guiding Principles on Internal Displacement - “IDP Guidelines” - 2011 Endorsed by UN Human Rights Commission and UN General Assembly Purpose: protection of internally displaced persons in internal conflict situations, natural disasters and other situations of forced displacement Referral in all phases of displacement Are guiding principles to guide Governments and non-governmental humanitarian actors Definition of “IDPs” persons or groups of persons forced or obliged to leave their homes or places of habitual residence in particular as a result of or in order to avoid the effects of (…) natural or human- made disasters who have not crossed an internationally recognized State border

Guiding Principles on Internal Displacement - “IDP Guidelines” - 2011 INTRODUCTION: definition of IDPs GENERAL PRINCIPLES: responsibility of the national authorities to protect IDPs, no discrimination for IDPs, special attention to vulnerable groups (Pr.1- 4) PROTECTION FROM ARBITRARY DISPLACEMENT: states avoid forced displacement. In case is unavoidable, established guarantees are lawful (Pr. 5-9) PROTECTION AND ASSISTANCE DURING DISPLACEMENT: IDPs enjoy civil, political, economic, social, cultural rights. (i.e: no violence or torture, access to food and water, freedom of movement, personal documentation, education, employment, right to vote) Pr. 10-23 ACCESS TO HUMANITARIAN ASSISTANCE: in case States do not provide assistance, international organizations offer their services (Pr. 24-27) DURABLE SOLUTIONS: right for IDPs to return home or resettle; participation in the planning, return of lost property or compensation, access to public services (Pr. 28-30)

THE PINHEIRO PRINCIPLES (2005) provide practical guidance to States, UN agencies and the broader international community on how best to address the complex legal and technical issues surrounding housing, land and property restitution provide a consolidated and universal approach to dealing effectively with outstanding housing and property restitution claims.

THE PINHEIRO PRINCIPLES (part.1) SECTION II-IV: re-affirm existing human rights and apply them to the specific question of housing and property restitution Pr. 2 The right to housing and property restitution Pr. 3 The right to non-discrimination Pr. 4 The right to equality between men and women Pr. 5The right to be protected from displacement Pr. 6 The right to privacy and respect for the home Pr.7 The right to peaceful enjoyment of possessions Pr.8 The right to adequate housing Pr.9 The right to freedom of movement Pr.10 The right to voluntary return in safety and dignity

THE PINHEIRO PRINCIPLES (part.2) SECTION V-VI: Reaffirms what States should do in terms of developing national housing and property restitution procedures and institutions, and ensuring access to these by all displaced persons (Principles 11-13) stress the importance of consultation and participation in decision-making by displaced persons outline approaches to technical issues of housing, land and property records, the rights of tenants and other non-owners and the question of secondary occupants (Pr. 14- 17) Explore legislative measures, the prohibition of arbitrary and discriminatory laws, the enforcement of restitution decisions and judgments (Principles 18- 20) Requires compensation (Principle 21) Responsibility of the international community in ensuring the right to housing,land and property restitution, as well as the right to voluntary return in safety and dignity (principle 22)

IASC Operational Guidelines on Human Rights in Natural Disasters Part I: Introduction Part II: Operational Guidelines A. Life, Security, Physical Integrity of the Person, & Family Ties B. Provision of Food, Health, Shelter, & Basic Necessities of Life C. Education, Housing, Land & Property, and Livelihoods D. Documentation Freedom of Movement, Re-establishment of Family Ties, Freedom of Expression & Opinion, and Elections Part III: Protection of Specific Groups of Persons

A. Protection of Life, Security, Physical Integrity of the Person, and Family Ties A.1 Life saving measures, in particular evacuations A.2 Protection against separation of families A.3 Protection against secondary impacts of natural hazards A.4 Protection against violence, incl. gender based violence A.5 Security in host families and communities, in camps or in collective shelters A.6 Dealing with mortal remains

B. Protection of Rights related to the Provision of Food, Health, Shelter, & Basic Necessities of Life B.1 General principles Safe, unimpeded and non-discriminatory access Specific measures for persons with specific protection needs Availability, Accessibility, Acceptability and Adaptability Humanitarian aid provided on the basis of assessed needs Internal Displacement  assistance to host families/communities Assistance must consider gender-specific roles in affected groups B.2 Provision of food, water and sanitation, shelter, clothing and essential health services Available: sufficient quantity and quality Accessible: no discrimination + physical access + public awareness Acceptable: culturally appropriate + gender and age sensitive Adaptable: change of needs through relief & recovery phases

C. Protection of Rights to Education, Housing, Land & Property, and Livelihoods C.1 Education C.2 Housing, Land and Property, and Possessions C.3 Transitional shelter, housing and evictions C.4 Livelihood and work

D. Protection of Rights Related to Documentation Freedom of Movement, Re-establishment of Family Ties, Freedom of Expression & Opinion, and Elections D.1 Documentation D.2 Freedom of movement (DURABLE SOLUTIONS) Return Local integration Re-settlement IN the country D.3 Re-establishing family ties D.4 Expression, assembly and association, and religion D.5 Electoral rights

Government’s Responsibilities Respect = must ensure that all state bodies do not violate human rights Protect = must prevent and stop rights violations by individuals or groups, and investigate, prosecute, punish abuse and ensure access to legal remedies Fulfill = must take all possible measures to ensure people can access and enjoy their rights by developing legal and administrative frameworks (principle of non discrimination)

“Responsibility to Protect” IASC Guidelines, Introduction Individuals and groups of individuals affected by natural disasters have the right to request and receive such protection and assistance from their governments IDP Guidelines, Principle 25 The primary duty and responsibility to internally displaced persons for providing humanitarian assistance to internally displaced persons lies with national authorities. IPD Guidelines, Principle 5 All authorities and international actors shall respect and ensure respect for their obligations under international law (…), in all circumstances, so as to prevent and avoid conditions that might lead to displacement of persons. IDP Guidelines, Principle 6 Every human being shall have the right to be protected against being arbitrarily displaced from his or her home or place of habitual residence. The prohibition or arbitrary displacement includes displacement: (…) (d) In cases of disasters, unless the safety and health of those affected requires their evacuation; (…). Displacement shall last no longer than required by the circumstances.

Principles of Non Discrimination IDP Guidelines, Principle 1 Internally displaced persons shall enjoy, in full equality, the same rights and freedoms under international and domestic law as do other persons in their country. They shall not be discriminated against in the enjoyment of any rights and freedoms on the ground that they are internally displaced IDP Guidelines, Principle 2 These Principles shall be observed by all authorities, groups and persons irrespective of their legal status and applied without any adverse distinction. The observance of these Principles shall not affect the legal status of any authorities, groups or persons involved. IDP Guidelines, Principle 4 These Principles shall be applied without discrimination of any kind, such as race, colour, sex, language, religion or belief, political or other opinion, national, ethnic or social origin, legal or social status, age, disability, property, birth, or on any other similar criteria. Certain internally displace persons, such as children, especially unaccompanied minors, expectant mothers, mothers wit young children, female heads of household, persons with disabilities and elderly persons, shall be entitled to protection and assistance required by their condition and to treatment which takes into account their special needs

Principle of Non-Discrimination Pinheiro Principles, Principle 3 3.1 Everyone has the right to be protected from discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, disability, birth or other status. 3.2 States shall ensure that de facto and de jure discrimination on the above ground is prohibited and that all persons, including refugees and displaced persons, are considered equal before the law IASC Guidelines, General Principle I Persons affected by natural disasters should enjoy the same rights and freedoms under human rights law as others in their country and not be discriminated against. Targeted measures to address assistance and protection needs of specific categories of affected populations do not constitute discrimination if, and to the extent that, they are based on differing needs.

PROTECTION PROTECTION IN EMERGENCY? 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. PROTECTION IN EMERGENCY? In the context of humanitarian action can be understood as the role that humanitarian and (in the context of recovery) development actors play with regard to ensuring that the rights of affected persons under international human rights law are respected, protected and fulfilled without discrimination. HUMAN RIGHTS  Foundation for Protection PROTECTION  Protecting Human Rights in emergencies

WHO? CHILDREN MINORITIES WOMEN IDPS PERSONS HIV-AIDS DISABLED ELDERLY

THE CORE PRINCIPLES OF HUMANITARIAN ACTION Do no harm Humanity ( dignity and respect) Impartiality Independence Neutrality BUT ALSO: Confidentiality Sensitivity Strengthen local capacity Understand the context Professionalism

UNHCR in HAITI 12-01-2011: earthquake in Haiti UNHCR rapid response team: identification of needs and protection mechanism Support Cluster Protection 43 QUIP’S PROJECT to support income generating activities and education to prevent sexual violence and statelessness PREVENT STATELESSNESS ACTIVITIES and HUMAN TRAFFICKING: lack of personal documentation, no access to basic services and no recognition of their rights as citizens

SGBV PROJECTS CONTEXT: lack of precise statistics on the real number of sexual violence inside the camps ACTIVITIES: Support UNFPA and Haitian Government to establish a comprehensive interagency data collection and case management. Ensure adequate SOP’s for accountability of cases Assist limited number of SGBV survivors with medical, psychosocial, legal counseling & referrals for victims through local NGO partners, Safe & friendly spaces (for persons with specific needs): T- shelter Relocalisation outside Haiti in case of lack of protection in Haiti

DOCUMENTATION CONTEXT: lack of personal documentation (lost or never had) ACTIVITIES: Identification of 4500 beneficiaries with specific needs in order to obtain birth certificates, as well as land property certificates ( in order to avoid forced eviction) Establish a data collection and a case management in the “Etat Civil” offices Advocacy activities with Haitian authorities for accession to the 1954 Convention relating to the Status of Statelessness person and 1961 Convention on the Reduction of Statelessness.

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