Chilean court orders compensation for tsunami damages

by Rhodri C. Williams

Having apologized for their failure to protect victims of the Pinochet regime three decades ago, Chilean courts have now staked out a progressive position in responding to charges of government negligence that exacerbated the effects of the tsunami three years ago. According to the BBC, Chile’s Supreme Court awarded $100,000 to the survivors of Mr. Mario Ovando, who died as a result of a fatal blunder.

The court heard that following the earthquake, Mr Ovando had heard an announcement on the radio that there was no danger of a tsunami. On the basis of that he decided to stay in his home.

However, 20 minutes later his house was engulfed by huge waves. Although his relatives managed to free him and take him to hospital, Mr Ovando died three days later.

The Chilean Navy – which runs the Hydrographic and Oceanographic Service – admitted after the tsunami that it had made errors in its diagnosis and had given unclear information to government officials.

The government issued an alert, then deactivated it, then revived it only after the deadly waves had struck.

As described here in response to a UN report on reparations for victims of terrorism, the Chilean Supreme Court ruling fits into a recent pattern of establishing higher duties of care for state authorities in the face of events once written off as ‘acts of God’. And as noted by the BBC, the current case is likely to herald many more suits by other victims of the Navy’s faulty diagnosis. As such ‘pounds of cure’ accumulate in national and regional practice, one can only hope they will highlight the relative attractiveness of ounces of prevention.

Coping with the realities of climate displacement: The Peninsular Principles

by Khaled Hassine

Dr. Khaled Hassine is an international laywer specialized in property restitution and mass claims procedures, who was part of the Peninsula Principles drafting team.

Though the linkages between climate change and displacement are complex and cannot entirely be predicted, the enduring debate about causality and path dependency seems somewhat derisive in light of the reality faced by many people around the world who are losing their homes and livelihoods as a result of climatic changes and their effects 

Climate displacement already is and will increasingly be one of the many ways in which affected populations adapt to their changed environment. Eventually, albeit belatedly, this actual fact was acknowledged in 2010 by the Cancún Adaptation Framework, which recognized migration, displacement and planned relocation as forms of adaptation to climate change.

The Peninsular Principles on Climate Displacement Within States are born out of a necessity to cope with this reality. The process was driven by people and communities claiming the protection of their rights in the wake of both large and small-scale threats from an increasingly hostile environment.

It is they themselves who felt that there was a pressing need to develop a normative, institutional and implementation framework. Displacement Solutions as an international non-governmental organization merely took on this grass root quest for guidance and solutions, and helped to facilitate and steer a process geared towards addressing the pivotal questions of climate displacement that concern people everywhere.

Redress without fault? UN to promote ‘automatic’ state reparations for terrorist attacks

by Rhodri C. Williams

The Guardian informs about a new report slated for release in June by the UN’s special rapporteur on counter-terrorism and human rights, Ben Emmerson. The report is said to propose “automatic legal rights to compensation and rehabilitation” for terror victims “under far-reaching changes to rebalance international law in favour of victims”:

The Emmerson report, if accepted, would have the effect of obliging all UN states to adopt a uniform set of standards, establishing more firmly in international law the principle that terrorist acts amount to violations of the human rights of the victims, irrespective of the question of direct or indirect state responsibility.

Sound intriguing? At first blush, this certainly seems to go beyond developments such as recent European Court of Human Rights jurisprudence requiring states to provide reparation to victims of foreseeable disasters that the state did not take reasonable steps to mitigate (on which, see Walter Kälin and Claudine Haenni here).

The text of the article implies a scoop, breathily citing details of the report “which have been obtained” by the Observer. However, fortunately for the rest of us, the entire draft report can be “obtained” by downloading it directly from the Rapporteur’s website. And it is worth a read, particularly paragraphs 49-63 on reparations.

Interestingly, the Special Rapporteur has not created an entirely ex gratia framework, but rather extended the notion of the state’s positive obligation to prevent terrorism based on a victim-centered approach. The idea that victims have undertaken an involuntary sacrifice on behalf of the state is endorsed (para 54), and the fact that it is virtually impossible to seek reparations from the perpetrators of terrorism is asserted as “perhaps the most fundamental point” (para 56). However, the existence of a human rights-based ‘duty to protect’ from terrorism appears to play a significant role:

…the determination of State responsibility for an alleged failure to take positive operational steps to prevent an act of terrorism can be fraught with evidential difficulties. If the approach advocated by the Special Rapporteur is followed, States will be under an obligation to provide reparation without imposing an additional burden on the victims or their next-of-kin to prove conclusively that public officials were at fault. (para 55)

Curiously, the report cites the Van Boven-Bassiouni Principles (at para 51), but only on the basic point of substantive reparations for rights violations, but not the implication in paragraph 15 thereof that the state should assume up-front responsibility for repairing rights violations by non-state actors, with the ability to later seek indemnification from the real perpetrators:

In accordance with its domestic laws and international legal obligations, a State shall provide reparation to victims for acts or omissions which can be attributed to the State and constitute gross violations of international human rights law or serious violations of international humanitarian law. In cases where a person, a legal person, or other entity is found liable for reparation to a victim, such party should provide reparation to the victim or compensate the State if the State has already provided reparation to the victim.

The section ends with an interesting discussion of the significant body of domestic law and practice that already exists in this area. According to the Guardian, the report is to be “presented to the UN human rights council in Geneva on 20 June and the general assembly in New York on 28 June” and already enjoys significant backing. Definitely one to watch.

IFRC meeting on post-disaster shelter issues

An invitation to TN readers that may find themselves in Geneva next Wednesday, July 20 – I’ll be co-facilitating an expert group meeting together with Geoffrey Payne on “addressing regulatory barriers to meeting the emergency and transitional shelter needs of people affected by disasters” and would welcome the participation of those of you have had occasion to work on and ponder these issues.

The aim of the meeting is to help the Disaster Law Programme at the International Federation of Red Cross and Red Crescent Societies (IFRC) to peer review both its current understandings of obstacles to post-disaster shelter and of practices proven to be effective in overcoming them in order to develop a set of recommendations for consideration at the 31st International Conference of the IFRC next November.

Week in links – week 10/2011

First, the weblog equivalent of a moment of silence for the victims of the ongoing disaster in Japan. Six years after their adoption and sixteen years after the similarly devastating Kobe quake that gave rise to them, the Hyogo Declaration and Framework for Action on disaster risk reduction face a gruesomely concrete field test.

Second, on an administrative note, I should announce a likely hiatus in TN postings over the next ten days or so, during which I will be on mission in West Africa. I hope that a few guest-postings may land during that period (and they will be rushed to press) but its likely to be pretty quiet here otherwise.

Moving to news, UN housing rights rapporteur Raquel Rolnik focused on the right to housing in post-conflict and disaster reconstruction settings in her latest annual report. While I have not yet had the chance to review the report in detail, it is interesting to note that the press release focuses heavily on land rights for affected persons. From this perspective, there is likely to be some overlap with last year’s humanitarian guidance on post-disaster land issues (posted on by Esteban Leon here).

The FAO has released a new report on gender equality in agriculture that focuses on women’s unequal access to the various economic opportunities and inputs that would let them compete with men – and the enormous price tag of such bias in a hungry world where women make up 43 percent of the agricultural labour force in developing countries. If TN readers are willing to overlook one appalling pun (“a level ploughing field”), they will find much of interest.

The New York Times followed up on articles from October  2010 and January of this year with a more recent piece on the complications faced by NATO troops in Afghanistan attempting to compensate villagers for property destroyed in the course of counter-insurgency fighting.

Finally, following up on last week’s posting on the Economist’s special report on agriculture, I should point out that my plug for this week’s corresponding report on ‘property’ may have been a case of irrational exuberance. The new special report is a fascinating read on property as an investment, the ostensible safety of which appears increasingly fragile in an era of recurrent bubbles. Of great interest to me, but perhaps more in my capacity as a mortgage-holder in one of Europe’s few remaining bubble candidates than as a blogger.

Week in links – Week 43/2010

A short but interesting list this week:

–IDMC reminds us that its been a year since the groundbreaking Kampala Convention was passed, committing African Member states to address internal displacement. However, only two member-states have ratified to date, leaving thirteen to go until entry into force.

– IRIN published a short article on the prevalence of land-grabbing after natural disasters and new efforts to secure land tenure.

– NYU’s Center for Human Rights and Global Justice published a report on the global land rush and human rights based on three negative case-studies (Tanzania, Sudan and Pakistan) and one more hopeful one (Mali).

– IRIN also reports on the connection between land and water scarcity and conflict in Yemen, a fundamental issue that appears to have been overlooked in the rush for political solutions:

“Social violence is the greatest threat to Yemen over the long term,” said Abdul-Ghani al-Iryani, a Yemeni political analyst. “Political violence and violence by the state against the population can be reversed relatively easily; there could be a new political settlement. But diminishing resources is an intractable problem that cannot be solved by political consensus. It will require much more work.”

– OpenDemocracy ran a long and thoughtful piece on the forthcoming Sudan referendum. In addition to pointing out the various tensions that risk returning the region to all out warfare, this comment also provides some useful background on the recent history of referendums in Africa and notes the potential of African and regional institutions to contain the potential for fiasco.

– David Cronin posts in OpenDemocracy on corporate capture of trade agreement negotiations and some of the more unpleasant social and environmental consequences.

The week in links – week 40/2010

A fairly modest crop after a busy week:

1. Oxfam’s turn to ring the alarm on the numerous risks entailed by Southern Sudan’s upcoming referendum …
2. … and to promote reconstruction of the agricultural sector in Haiti in a new briefing paper.
3. UNHCR comments on how protracted conflict situations are creating a ‘new global refugee’ population.
4. FAO and WFP comment on how protracted crises involving chronic hunger and food insecurity affect twenty-two countries worldwide “due to a combination of natural disasters, conflict and weak institutions”.