Disasters and non-state actors – human rights-based approaches

3.2.1 NGOs

The positive role that the gamut of NGOs can play in disaster governance for the protection of persons is undisputable. NGOs’ contributions can concretely save lives through emergency provision of food, aid and shelter, or support recovery by providing agricultural assistance and rebuilding community services; they can also raise public awareness, provide communication between local communities and governments, and help “build local capacity to respond to disasters” by meaningfully engaging with local communities (e.g. Osa, 2013; Demiroz and Kapucu, 2015).

Both the numbers of NGOs involved in disaster governance and their position in relation to the State have changed significantly (Jones et al., 2014; quoting Bebbington, 2005). States increasingly actively rely on NGOs to provide essential services due to a lack of their own resources, weak government structures or because NGOs are simply closer to affected communities and better placed to provide assistance (Tierney, 2012; Osa, 2013; Jones et al., 2014; Lane and Hesselman, 2017). In such circumstances, States actively harness the resources of NSAs, so as to ensure better or broader human rights protection. When this occurs, States continue to bear obligations of supervision and oversight, and may be held responsible for the poor exercise of these functions. Of course, in these circumstances the question of the “direct” responsibilities of NGOs under IHRL may also arise.

Somewhat surprisingly, considering the important role of NGOs in fostering human rights protection, their direct human rights duties or responsibilities have not been widely addressed by the UN human rights machinery, nor in literature (Schimmel, 2015). UN human rights bodies have addressed NGOs’ obligations/responsibilities on some occasions, e.g. when stating on the rights to health and water that “[w]hile only States are parties to the Covenant and thus ultimately accountable for compliance with it,” all members of society, including NGOs and the private business sector, have responsibilities for realizing human rights (UN Committee on Economic, Social and Cultural Rights, 2000). In respect of “obligations of actors other than States,” it was stressed that “[t]he role of … non-governmental organizations … is of particular importance in relation to disaster relief and humanitarian assistance in times of emergencies” (UN Committee on Economic, Social and Cultural Rights, 2000, 2003).

Nevertheless, references to NGOs’ direct obligations/responsibilities are scant, perhaps because NGOs are generally presumed “to do good.” Indeed, NGOs’ human rights responsibilities are generally understood in conjunction with those of the State, i.e. in terms of jointly ensuring or supporting human rights protection (see e.g. UN Committee on the Rights of the Child, 2007, paras 27-28). A clear exception is found in the recent UNHRC study: “humanitarian organizations must strive to “do no harm” or to minimize the harm they may be inadvertently doing simply by being present and providing assistance” (UN Human Rights Council, 2015, para. 40(g)).

The picture of NGOs’ human rights responsibilities becomes decidedly different when we look at self-regulatory instruments drafted by NGO and non-governmental humanitarian relief sectors. Several disaster-related standard-setting initiatives are decidedly “human rights-based,” of which the IASC’s “Operational Guidelines on the Protection of Persons in Situations of Natural Disaster” (Inter-Agency Standing Committee, 2011) stands out. These Guidelines, drafted jointly by UN bodies and several NGO coalitions, aim to protect “the human rights of persons affected by disasters at all times and advocate for their promotion and protection to the fullest extent;” moreover, international humanitarian organizations “accept that human rights underpin all of their actions” (General Principle II.2). The IASC Guidelines explicitly target international and humanitarian NGOs when promoting “that disaster relief and recovery efforts are conducted within a framework that protects and furthers human rights of affected persons” (Inter-Agency Standing Committee, 2011, p. 7). NGOs are also asked to refrain from promoting, endorsing or partaking in “policies or activities leading or likely to lead to human rights violations or abuses” and to take measures in all phases of disasters (Inter-Agency Standing Committee, 2011, p. 3).

The IASC Guidelines are considered a “major contribution to the promotion of a rights-based approach in situations of natural disasters” (Inter-Agency Standing Committee, 2011), for they engage with human rights standards in great detail and suggest very precise measures to be taken to better protect four different groups of rights particularly threatened by disasters.

On the other hand, there is no explicit reference to “transparency,” and scant reference to “accountability.” Schimmel (2015) also notes that while NGOs’ self-regulation is proliferating, their accountability still seems a very weak point. This is a challenge, as NGOs may indeed do both harm and good (OHCHR, 2015). Thus, a more rigorous analysis of their human rights impacts under HRBAs is important.

The Sphere Project’s (2011) “Humanitarian Charter and Sphere Minimum Standards in Humanitarian Response” (Sphere Handbook) presents another well-known self-regulatory initiative. The Sphere Project was initiated in 1997 by a group of NGOs and the IFRC. Its Board now comprises 18 major civil society organizations, jointly representing over a thousand smaller local organizations. The Sphere Project is clearly “human rights-based,” for the Humanitarian Charter is explicitly grounded in all major legally binding IHRL instruments. Moreover, the Handbook elaborately links proposed activities in specific action areas (e.g. water, sanitation, food) directly and intentionally to the content of relevant rights in IHRL – as explained in general comments or other soft-law instruments. The Handbook has been hailed a “useful mechanism for self-regulation and action by civil society organizations” (Ali and Kabau, 2014) and inspired the IASC Guidelines.

3.2.2 Private companies

Private companies’ contributions to disaster governance are also increasingly discussed, understood and underscored (Telesetsky, 2015; Silingardi, 2016). Recent studies on their role in disaster risk management (DRM) confirm that business engagement in humanitarian response and DRM is common and growing (Global Public Policy Institute, 2015; Silingardi, 2016). Engagement consists of commercial activity (when companies are paid for their products and services) and non-commercial activity (when companies make philanthropic donations of money to humanitarian organizations, or partner-up with non-profit entities to deliver services) (Global Public Policy Institute, 2015). Commercial engagement may be instigated by States, donors or NGOs that (sub)contract various disaster-related services, including shelter, reconstruction, logistics, security and monitoring services (Global Public Policy Institute, 2015). Silingardi (2016, p. 229) notes that especially with non-commercial contributions, “problems of coordination may arise and provisions of international law become more relevant.”

Earlier studies suggest that private actor engagement in disaster governance can be adversarial, neutral, cooperative, contractual, collaborative or unilateral in nature (Twigg, 2001; Demiroz and Kapucu, 2015; Telesetsky, 2015). The latter, for example, would entail a one-off, short-term, non-commercial action, driven by urgent needs and compassion toward disaster victims (Twigg, 2001). Silingardi (2016) submits that companies’ contributions may sometimes surpass those of traditional relief actors: in 2013, at least half of the total humanitarian assistance to the Philippines for Typhoon Haiyan was offered by corporate actors.

Understanding companies’ obligations is crucial when they operate critical public infrastructure and essential services, such as water services, healthcare, electricity, emergency transportation, telecommunications or financial services for recovery. Critical infrastructures can be heavily damaged during disasters, severely impeding effective responses or (early-) recovery. Adequate disaster preparedness and response plans by private companies can be essential to the population. Tierney (2012) observes that when the vast share of a nation’s critical infrastructure is in private hands, public-private partnerships (PPPs) should be made with companies in charge of such services. This would bring the regulatory control of the State (back) in. PPPs are increasingly supported and explored in the area of disaster management and for emergency assistance specifically (Silingardi, 2016). Good examples of existing PPP’s are Deutsche Post DHL’s cooperation with the EU on emergency transport and logistics and Ericssons’ cooperation with the IFRC on telecommunications (see Silingardi, 2016). PPPs entail that public and private actors work together to ensure the protection of public interests and human rights, by minimizing the negative effects of disasters (Tierney, 2012; Demiroz and Kapucu, 2015). In doing so, PPPs may allocate “significant risk and management responsibility” to the private sector (Public-Private-Partnership in Infrastructure Resource Center (World Bank Group), 2016). This arguably could involve States placing human rights duties on private actors under States’ obligations to “protect” or “fulfil,” but also the articulation of private actors’ own separate human rights duties.

Since companies’ positive or negative contributions to human rights protection in the area of disaster management are so significant, it seems appropriate not to consider their contributions largely or exclusively within the State’s regulatory sphere, i.e. indirectly, but also to burden private actors directly with human rights obligations. At the same time, there are some inherent challenges/limitations to business’ contributions that must also be considered, e.g. businesses might in many respects be able to respond to unsafe conditions as they occur, but cannot address “deeper socio-economic and political causes” and structural vulnerabilities that trigger and exacerbate disasters in many cases (Twigg, 2001). Similarly, a business will not generally “feel itself responsible for natural disasters, seeing this as an issue for government” (Twigg, 2001; Silingardi, 2016).

Nevertheless, considerable developments in the field of disaster management and in human rights standard-setting during the past 15 years, alongside corporations’ own engagement with IHRL, need to be acknowledged (Telesetsky, 2015; Wettstein, 2015). As pointed out, corporate sector involvement in disaster management is much larger now, and grows not only because of the sheer size of the problem, but also because businesses themselves are at risk from disasters (e.g. United Nations Office for Disaster Risk Reduction, 2013).

In terms of specific developments on “business and human rights,” the UN system has unambiguously moved to recognize “direct” human rights responsibilities for businesses. The 2011 UN Guiding Principles on Business and Human Rights (UN Human Rights Council, 2011) are the most significant development so far, although a UN Working Group is currently also exploring a possible binding treaty on business and human rights.

Until then, the non-binding UNGPs affirm that businesses should “do no harm” by avoiding infringements of “the human rights of others and should address adverse human rights impacts with which they are involved” (UN Human Rights Council, 2011, p. 14). The UNGPs require, inter alia, that businesses take adequate prevention and mitigation measures to prevent human rights harm, and do “not undermine States’ abilities to meet their own human rights obligations” (UN Human Rights Council, 2011, pp. 14-15). This certainly has relevance for disaster situations, in that companies should not create or exacerbate disasters.

Conversely, potential positive contributions of businesses to disaster governance should not be underestimated. Businesses play a role in securing access to insurance, financing reconstruction (loans, mortgages), developing new technologies, and making non-profit donations. From the perspective of IHRL, after earthquakes in Japan, UN human rights supervisory bodies expressed concern about poorer households having difficulty financing reconstruction of homes and meeting “financial obligations to public housing funds or banks.” Some persons were “forced to sell their property in order to pay off their existing mortgages without being able to rebuild their houses” (UN Committee on Economic, Social and Cultural Rights, 2001). In this case, the Government’s duty to assist affected persons was recalled, but surely a separate responsibility for businesses to ensure adequate access to financial services or special protection can exist too.

Could private companies be held responsible for failing to improve human rights enjoyment where they can? Companies may operate in essential sectors, be able to exert their influence in a certain area, or have special capacities to assist (Hesselman et al., 2016). Are their positive contributions always solely a matter of “charity” or “choice,” or also of human rights “obligation” or “responsibility” (Telesetsky, 2015; Wettstein, 2015)? This question is difficult to answer, especially since the UNGPs have been criticized for skirting this topic in favor of formulating the more straightforward and palatable obligation to “do no harm” (Wettstein, 2015). In comparison, the ten voluntary “corporate social responsibility” principles of the UN Global Compact include in Principle 1 that “businesses should support and respect” international human rights, with “support” referring to “making a positive contribution […] to promote and advance human rights.” In explanation of the scope of support, the Compact refers inter alia to “capability,” “position to do so” and “(sphere of) influence” (UN Global Compact, 2010).

We consider that under self-regulatory HRBAs companies can certainly take up and articulate more specific IHRL responsibilities themselves, both positively and negatively. A good example of disaster-related corporate self-regulation are the “Guiding Principles for Public-Private Collaboration for Humanitarian Action” (UN-OCHA and World Economic Forum, 2007), which affirm from the start that “humanitarian action is governed by international humanitarian law, human rights and refugee law, and several related principles.” They also explicitly acknowledge that “the humanitarian community has developed professional standards and codes of conduct for the provision of quality assistance” which humanitarian and private parties should work together to adhere to. These standards include the pertinent human rights-based standard-setting initiatives already discussed, and include a reference to the UN and business website.

GPPI further points out that service contracts or memoranda of understandings between donors, NGOs and companies often include clauses requiring companies to adhere to important humanitarian principles (although the number of references to particular codes, or human rights, is not clear, Global Public Policy Institute, 2015). These clauses can be an excellent way for States or other parties to ensure that private companies abide by human rights standards in PPPs, and may be a way of (re)affirming and increasing accountability for the private sector’s own human rights responsibilities, or giving effect to the State’s regulatory obligations to ensure protection (and fulfillment) of human rights by companies (thus, creating indirect human rights obligations for companies).

An additional example of self-regulation is the sector-specific document “Disaster Response: Guidelines for Establishing Effective Collaboration between Mobile Network Operators and Government Agencies,” drafted by the large telecom branch organization GSMA (2012). This document affirms that the UN increasingly recognizes that “access to information is a basic human right […] particularly important during disaster situations,” and that “operators are increasingly being called upon to engage with humanitarian organisations and national governments to harness the potential of mobile phone networks and data to support response and preparedness strategies.” The document is rather detailed in describing the various modes of cooperation, but does not include much further linkage to IHRL.

Unfortunately, most corporate documents remain rather weak or partial HRBAs, as detailed linkage to existing IHRL standards or the operationalization of non-discrimination, the protection of vulnerable groups, participation and accountability may be limited. Moreover, since most instruments are not formally backed-up by “hard-law” agreements, this may impede possibilities for legal accountability (see Silingardi, 2016).