The end of summer 2017 has posed extraordinary disaster management challenges for the US.  Between August 26 and September 20, 2017, Hurricane Harvey ravaged Texas, Hurricane Irma affected Florida, and Hurricane Maria devastated Puerto Rico. While the US responded swiftly and with urgency to the damage Hurricanes Harvey and Irma caused in Texas and Florida, the relief delivered in Puerto Rico in the aftermath of Hurricane Maria has fallen short.  The assistance that local and federal authorities have provided to Puerto Rican residents has not matched the magnitude of the destruction ensuing from the hurricane, and was marred by delays that have led to an excessive number of deaths in the months following the disaster. Studies have found that while 64 died as a result of the immediate impact of Maria, over 1,000 more deaths occurred in its aftermath owing largely to medical conditions such as sepsis and respiratory problems.[1]

Several factors account for the unexpected and dramatic number of casualties.  For the purposes of this post, I will consider lack of timely provision of health care resulting from discoordination between civilian and military health care providers involved in the recovery from Hurricane Maria.[2]  I will also keep in mind that reports suggest that the contrast between the relief provided to disaster victims in Florida and Texas and the assistance delivered to those in Puerto Rico can be ascribed to the legal status of Puerto Rico as an “unincorporated territory” of the US, as a result of which its people have statutory US citizenships that does not, however, entitle them to the same rights and legal protection applying to other US citizens.[3]

I believe that the situation in Puerto Rico could have been different had the US taken a human rights-based approach (HRBA) to disaster management there.  Implementing the HRBA in disaster and post-disaster settings means that measures to deal with a disaster and its consequences are designed and implemented for the very purpose of respecting, protecting, and fulfilling those rights of disaster victims that are most at stake during disasters. The HRBA requires that the following pivotal human rights law principles underpin disaster management: the principles of non-discrimination and equality; the principle whereby the protection needs of those who are more vulnerable or disproportionately affected by the harms of a disaster have to be tackled as a matter of priority; the rights of disaster victims to be informed about governmental disaster management strategies and to participate in their drafting and implementation; and disaster victims’ rights to access to justice and reparations in cases where they have suffered violations of rights as a result of mismanagement of a disaster. The HRBA supersedes a notion of disaster response meant as mere logistical effort to alleviate the sufferings of needy disaster-affected persons to replace it with a notion of disaster management qua process that should revolve around the satisfaction of disaster victims’ protection needs through implementation of their human rights.  The HRBA is disaster victim-centered and constitutes a powerful reminder that disaster victims are right-holders and that those who deliver disaster assistance should treat them as such.

The HRBA is an operational and conceptual framework that is not new to the US.  The UN Human Rights Committee analyzed the US second and third periodic reports on the implementation of the 1966 UN Covenant on Civil and Political Rights[4] and made several recommendations in 2006.  Some of these recommendations addressed how to ensure that the recovery from Hurricane Katrina and disaster management in general were buttressed by human rights norms and principles binding on the US.  More precisely, one of the recommendations has to do with the far-reaching prohibition of discrimination, based on certain internationally recognized grounds, “in law or in fact in any field regulated and protected by public authorities,”[5] as set out in Article 26 of the Covenant.  Accordingly, the Committee recommended the US to increase, “[i]n the aftermath of Hurricane Katrina […] its efforts to ensure that the rights of the poor […] [were] fully taken into consideration in the reconstruction plans with regard to access to […] healthcare.”[6]  Given the fundamental and overriding nature of the prohibition of discrimination enshrined in Article 26, the Committee’s recommendation can be interpreted as implying that US disaster management strategies generally must not neglect disaster victims’ rights as they apply to medical treatment in order to comply with Article 26.  Any neglection of rights cannot be based on any of the internationally proscribed grounds of discrimination: race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.

The closest clarification of what a disaster-affected State could concretely do to guarantee disaster victims’ rights with regard to access to health care under Article 26 of the ICCPR is contained, in my view, in the IASC Operational Guidelines on the Protection of Persons in Situations of Natural Disasters.  Guideline B.2.5 on the right to health states that competent authorities should plan health interventions so as to provide health care timely and without discrimination, by giving priority consideration to disaster-affected persons requiring medical attention because of pre-existing medical conditions and health problems developed as a result of the disaster or during the overall humanitarian response.

In its management of Hurricane Maria in Puerto Rico, the US should not have overlooked the important implication of the recommendation of the Human Rights Committee.  The US should have implemented the HRBA embedded in it in light of the IASC Operational Guideline B.2.5.  Implementing the HRBA would have made the US more mindful of the health needs that Hurricane Maria victims had in the aftermath of the disaster, and would have paved the way to the realization of these persons’ rights relevant to access to health care.  This approach would have led to early planning of arrangements, including coordination arrangements, for the provision of timely access to health care by all the medical providers involved in the recovery from Hurricane Maria to all the affected persons who needed it.[7]

Put more simply, the implementation of the HRBA would have minimized the loss of lives in the months following Hurricane Maria.  It would have avoided tainting the disaster management strategy in Puerto Rico by instances of prima face discrimination against the residents of Puerto Rico based on their legal status as second class US citizens in contravention of Article 26 of the Covenant on Civil and Political Rights.

 

[1] See for instance, Konyndyk J., Hurricane Maria killed 64 Puerto Ricans. Another 1,000 died because the disaster response was inadequate, December 18, 2017, available at https://www.washingtonpost.com/news/monkey-cage/wp/2017/12/18/hurricane-maria-killed-64-puerto-ricans-another-1000-died-because-the-disaster-response-was-inadequate/ (accessed on February 15, 2018).
[2] Santiago L. and Simon M., There’s a hospital ship waiting for sick Puerto Ricans — but no one knows how to get on it, October 17, 2017, available at http://www.cnn.com/2017/10/16/health/puerto-rico-hospital-ship/index.html, (accessed on February 15, 2018).
[3] See: The Misery in Puerto Rico is completely unacceptable, October 12, 207 available at https://www.washingtonpost.com/opinions/the-misery-in-puerto-rico-is-completely-unacceptable/2017/10/12/cb37d19c-aebf-11e7-be94-fabb0f1e9ffb_story.html (accessed on February 15, 2018); and Cummin-Bruce N. and Robles F., U.S. Response to Storm-Hit Puerto Rico Is Criticized by U.N. Experts, October 30, 2017, available at https://www.nytimes.com/2017/10/30/us/puerto-rico-whitefish-fbi-power-.html, (accessed on February 15, 2017).
[4] The US ratified the Covenant on Civil and Political Rights in 1992 and is required, by virtue of Article 40 of the Covenant, to submit to the Human Rights Committee periodic reports on measures adopted to give effect to the Covenant rights domestically.  More information on how the Human Rights Committee monitors compliance with the Covenant on Civil and Political Rights by States that have adhered to it is available at http://www.ohchr.org/EN/HRBodies/CCPR/Pages/CCPRIntro.aspx.
[5] General Comment No. 18: Non-Discrimination, November 10, 1989, HRI/GEN/1/Rev.9 (Vol. I), para. 12.
[6] Concluding observations of the Human Rights Committee on the second and third periodic reports of the USA, 18 December 2006, CCPR/C/USA/CO/3/Rev.1, para. 26.
[7] The importance of enhancing cooperation between health authorities to strengthen country capacity for disaster risk management for health is acknowledged by the Sendai Framework for Disaster Risk Reduction 2015-2030, available at: https://www.unisdr.org/files/43291_sendaiframeworkfordrren.pdf, (accessed on February 21, 2018).  See in particular Priority 3: Investing in disaster risk reduction for resilience, para. 31 (e).