Measuring the way forward in Haiti: Grounding disaster relief in the legal framework of human rights

Participation
The different concepts in humanitarian organizations’ definitions of the rights-based framework can be more fully understood by comparing them with analogous principles at work in humanitarian settings as articulated by the Sphere Project’s Minimum Standards in Disaster Response and the HAP Standard. As an example, this section will compare participation as a key principle of both human rights and in the Sphere Project standards and indicators. Participation is also a key element of the HAP Standard, but this section will focus on the principle of participation in the Sphere Project.¹⁷ Many of the issues related to participation highlighted in this section have been analyzed by humanitarian actors themselves, though such analyses have tended not to engage with human rights law. As a result the concept of participation differs under humanitarian principles and human rights law. This creates a risk in a post-disaster setting that participation, as defined by humanitarians, will dilute the broader right to participation.Though a full discussion on the legal framework of the right to participation is beyond the scope of this article, a basic understanding of the term demands a brief look at both the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR).The UDHR specifically provides for the right to political participation.18 According to the UDHR, every person has the right to participate in the government of his/her country, either directly or through freely chosen representatives. The UDHR also extends the right to participate to include equal access to public service and to participate in the cultural life of the community. The right to participate, according to the UDHR, also includes the right to enjoy and share in scientific advancement and its benefits. The right to participation as adopted by the UDHR, thus, has a political, public, cultural and, arguably, an economic aspect.The right to participation extends, however, beyond these rights to encompass a broad range of rights necessary for the “meaningful participation of those affected in decision-making.”¹⁹ Thus, the right to participation should be considered in the context of all the rights contained within the UDHR, including the general principles stated in Articles 6 and 7 of the UDHR, which acknowledge the right of all persons to be recognized before the law without discrimination and with equal protection under the law.While the UDHR is in itself non-binding, many of its principles are encompassed in binding human rights treaties, including the ICCPR and the International Covenant on Economic, Social and Cultural Rights. For example, the ICCPR specifically provides individuals with the human right to participate in the political life of the community.²⁰ According to the ICCPR, all citizens have the rights to participate in the conduct of public affairs, to vote and to be elected and to have access to public service.²¹ The ICCPR also recognizes the same rights to recognition and equal protection under the law and to freedom of opinion and expression.²² In addition, the ICCPR offers insight into preconditions for meaningful and full participation. For example, everyone has the right to use his or her own language, an important condition to ensure participation is possible.²³ According to the Human Rights Committee (HRC), the UN body charged with monitoring the implementation of the ICCPR, the right to participate in the conduct of public affairs extends “to all aspects of public administration, and the formulation and implementation of policy at international, national, regional and local levels.”²⁴The Sphere Project’s 2004 Minimum Standards in Disaster Response, the version available at the time of the survey, provides an influential example of how humanitarian organizations have attempted to incorporate rights-based approaches into their work by seeking the inclusion of beneficiaries in programming. Sphere’s “Common Standard 1: Participation” requires that “[t]he disaster-affected population actively participates in the assessment, design, implementation, monitoring and evaluation of the assistance programme.”²⁵ To monitor compliance with the standard, three indicators are recommended. The first indicator tracks beneficiaries’ access to information, asking whether women, men, all age groups, and vulnerable groups receive information about assistance and opportunities to provide feedback throughout all stages of the project cycle. This indicator also requires the inclusion of both disaster-effected populations and wider local populations. The second indicator looks at whether written objectives and plans of projects reflect “the needs, concerns and values of disaster-affected people, particularly those belonging to vulnerable groups, and contribute to their protection.”²⁶ The third indicator is that program designs maximize the use of local skills and capacities.Survey respondents were asked whether certain participation indicators, drawn from various sources including the Sphere Project and human rights law, were rights-based. There was no clear agreement among survey respondents concerning which elements of participation are rights-based. While 83% and 72%, respectively, believed that “the percentage of camp residents knowledgeable about available services” and “the opinions of the community and other local stakeholders on the causes of malnutrition should be considered” were both rights-based indicators, only 36% believed “the number of community meetings organized” was a rights-based indicator.Humanitarian agencies tend to frame participation for beneficiaries within the confines of specific programs—not in relation to the exercise of participation in public life more broadly. For this reason, the lack of uniformity among respondents concerning which participation-related indicators they considered to be rights-based seems understandable. While the data cannot reveal the exact reasons for this disagreement, they do suggest what seems apparent from practice: that humanitarian actors monitor participation within narrow confines, and not in relation to the broader right to participation. Since humanitarian organizations in many contexts control vast resources upon which the population may depend in order to survive, participation of that population in programming is certainly crucial. But focusing on such participation, without encouraging and enabling a more robust avenue for participation in public life, for example through community meetings, may ultimately fail to ensure the full human rights of beneficiaries.Understanding participation through a human rights lens also requires the assignment of obligations to duty-bearers. The Sphere Project’s Minimum Standards in Disaster Response do recognize that humanitarian organizations have some responsibility—at least as a matter of good practice—to rights-holders. However, adherence to the standard does not ascribe a clear relationship between the organization, the state, and the disaster-affected and wider local population. This differs from the human rights framework, which does define relationships between duty-bearers and rights-holders and assigns duty-bearers the obligations to respect, protect and fulfill. With regard to participation, the obligation to respect would require all duty-bearers to refrain from interfering with the enjoyment of the right to participation and those rights required for achieving the right to participation. The obligation to protect would require duty-bearers to prevent third parties from violating the right to participation; while the obligation to fulfill would require duty-bearers to take measures necessary to fully realize the right to participation.A more robust rights-based framework would provide clarity about the relationship between the humanitarian aid system, the affected community, the wider population, and the state. This in turn would bring clarity to the obligations the system has in each relationship. The Sphere Project’s Minimum Standards in Disaster Response standards do not do this, however, because the focus is project-based; thus, participation as a right to be involved in public life more broadly is not addressed by Sphere.Participation according to the Sphere Project standards requires that humanitarian organizations create opportunities for beneficiaries and the wider population to take part in programming decisions. This is an important precursor to the realization of human rights, but the human rights principle of participation is naturally much broader and aims to ensure that all persons within the territory of the state have a say in the life of the nation. While ensuring this right may seem daunting, a more robust rights-based approach to participation in humanitarian interventions would ensure that participation in humanitarian programs would not replace the broader right to participation, but would create the environment which would enable the realization of that right. In a disaster situation such as Haiti, where myriad organizations are providing services to hundreds of thousands of people, the result of the more limited version of the rights-based approach is that opportunities for participation may exist within self-contained spaces, but the wider right of participation in response and recovery is neglected or inaccessible to those most affected by the disaster. Defined with reference to human rights law, participation would focus on the role of humanitarian organizations in strengthening the ability of beneficiaries to participate in larger political processes, and on ensuring the state has the capacity needed to facilitate and respond to such participation while refraining from limiting it. While broad political participation certainly cannot be guaranteed through humanitarian action, it can be enhanced through humanitarian programming that aims to ensure the fulfillment of rights as set out in human rights law. Designing indicators and benchmarks to measure this impact would help humanitarian workers measure the extent to which their work is truly rights-based.Accountability
Like participation, accountability is a principle both of human rights law and of standards developed by humanitarian organizations. This section compares the concept of accountability in human rights law and in the HAP Standard. Accountability is a bedrock principle of human rights, undergirding all human rights treaties. For example, Article 2 of the ICESCR requires states immediately to take steps to implement economic and social rights, including through legislation; to be effective, such legislative enactments must include accountability mechanisms for breaches. Article 2 of the ICCPR sets out the right to a remedy for violations of the rights included in the Covenant. The right to a remedy is at the core of all human rights and requires states to set up systems that can ensure those who violate human rights are held accountable and that those wronged receive redress. As the UN OHCHR has explained, “the raison d’être of the rights-based approach is accountability.”²⁷  In the development field, a great deal of work has been done to emphasize how rights-based approaches can enhance accountability by directing resources and attention to accountability mechanisms such as courts, national human rights institutions mandated to investigate and remedy violations, or other systems of redress. To this end, rights-based development programming aims to directly strengthen both the capacity of the state to respond to human rights violations through its official agencies and the capacity of rights-holders to demand accountability of those responsible for fulfilling rights and redressing wrongs.In the humanitarian setting, tools such as the HAP Standard have been created that aim to make humanitarian organizations more accountable to those affected by disasters. HAP defines accountability as a means through which power is used responsibly, recognizing that humanitarian organizations wield often immense power in disaster situations independent of the state. Indeed, accountability for the humanitarian aid system has been explored outside of HAP by academics and humanitarian organizations themselves.²⁸ HAP understands accountability not as a right in and of itself, but as a process by which people affected by a humanitarian organization’s exercise of power have their views taken into account. HAP assists organizations to evaluate, improve, and validate their accountability through training, capacity-building, and auditing via benchmarks that assess whether specific processes are followed to ensure accountability in practice.The Standard developed by HAP addresses an organization’s relationship to its beneficiaries, and seeks to improve the quality and impact of its actions. HAP has created an accreditation process, by which an outside auditor measures an organization’s compliance with the HAP Standard. The HAP Standard and its benchmarks serve as the auditing guidelines for the accreditation process. In developing the Standard, HAP created a set of principles for humanitarian action, a set of humanitarian quality management benchmarks, and guidelines for working with humanitarian partners. Certification requires an organization to undertake an audit, adhere to the principles and to fulfill qualifying norms including: formally declare itself an INGO wherever the organization works, adhere to financial accountability laws, and publicly provide its accountability framework, including how it plans to ensure accountability to its stakeholders. The first HAP Standard was launched in 2007; the revised 2010 HAP Standard, largely a re-organization of the first version, was released after the survey was conducted.Accountability for HAP is not explicitly about ensuring human rights; it is instead a vehicle for increasing the quality and responsiveness of humanitarian services. This is achieved in part by ensuring that beneficiaries are given information about an organization’s programs, are able to participate in programming and make their voices heard, and have access to mechanisms allowing them to make complaints about the organization. In many ways, these requirements mirror those of human rights law, which mandates that individuals have access to information about government programs, have the ability to participate in public life, and can access remedies when their rights are violated.However, the same mismatch between humanitarian standards and human rights law as was uncovered in relation to participation is present in relation to accountability. While human rights law requires that individuals have access to accountability mechanisms and means of redress through state institutions, the HAP Standard is concerned with beneficiaries’ ability to access these things vis-à-vis humanitarian agencies directly. This is an extremely significant first step, and it grows out of the very laudable desire by humanitarian actors to respond to the rights of beneficiaries to hold them to account. However, to improve the human rights situation for disaster-affected populations in a sustainable manner, humanitarian action should also contribute to the capacity of the larger accountability structures within the relevant state to respond effectively to the claims of rights-holders. This might mean that humanitarian organizations need to subject themselves to local accountability structures like national human rights institutions, which may be vested with jurisdiction to hear complaints by beneficiaries against organizations or their staff. For example, following the 2004 Asian tsunami, the Sri Lankan Human Rights Commission established a Disaster Relief Monitoring Unit to process complaints concerning domestic and international relief agencies.²⁹ Or it might mean that humanitarian organizations should work alongside the local planning ministry to set up complaints-handling mechanisms for all humanitarian aid, instead of creating a multitude of complaints mechanisms, each tied to—and controlled by—the relevant organization.The crucial difference between the accountability mechanisms recommended by the HAP Standard and those required by human rights law lies in their binding nature and their institutional location. Humanitarian agencies that create complaints mechanisms and robust feedback systems do enhance the accountability of the agencies to their beneficiaries through direct lines of communication between beneficiaries and agencies. But they do not purport to subject themselves to binding state-based mechanisms that could, for instance, insist on redress as required under human rights law should an agency’s complaints mechanism be inadequate. Such mechanisms recognize beneficiaries as rights-holders and enhance the capacity of the state to insist on specific standards of conduct. For this reason, defining accountability often implicates the principle of participation, because accountability is inherently relational, requiring the definition of “to whom” an entity is accountable, and thus “is closely linked to the effective participation of people.”³⁰Humanitarian actors may resist the idea that a rights-based approach requires affirmative engagement with the state, especially with respect to accountability mechanisms. This is understandable, given that the HAP and Sphere Project standards developed out of conflict situations where humanitarian organizations struggled to protect their role in situations in which the host state is corrupt, inept, or actively predatory. However, as natural disasters become increasingly more frequent and destructive, the humanitarian aid system will be called upon to operate in situations different from the origins of the standards that guide them. The earthquake in Haiti demonstrates that natural disasters can have devastating impacts on both populations and on states. While the capacity of a host state may be diminished by the cause of the emergency itself, the state remains the primary guarantor of rights, and humanitarian organizations’ engagement with the state is required to ensure the protection of citizens’ human rights. Attention should be paid in such circumstances to enhancing and improving the capacity of the ultimate duty-bearer—the state—to uphold the rights of disaster-affected communities. Thus, where the state is inept or temporarily disabled by disaster, the humanitarian community should work to ensure the capacity of governmental institutions is restored, in part by engaging directly with—and perhaps thereby improving—its accountability mechanisms.One respondent to the open-ended portion of the survey complained that a rights-based approach to humanitarian aid shifts responsibility for fulfilling beneficiaries’ rights to humanitarian organizations and away from donor agencies, host governments, and donor states. According to this respondent, a rights-based approach actively removes the accountability of these actors and places the blame for failures on INGOs, thus decreasing accountability overall, because there is no recourse for failures due to lack of sufficient funding or political will. This respondent calls for equal participation and accountability for all stakeholders. This insight is crucial, since it underscores that current rights-based approaches—by focusing on the accountability of INGOs separately from that of legal duty-bearers—distort rather than strengthen the accountability structures under international human rights law. An explicit commitment to building the capacity of legal duty-bearers should be embraced, alongside the recognition that the means for doing so will vary according to context. Concrete mechanisms for measuring the impact of humanitarians on the capacity of duty-bearers to deliver accountability, including the use of indicators and benchmarks, could be designed through joint action between humanitarians and human rights advocates.

The earthquake in Haiti wreaked catastrophic damage, and the humanitarian aid system responded with great dedication and alleviated much suffering. With the emergency phase complete, the long-term impact of processes begun in that phase will continue to be felt. The purpose of this article is not to assess or critique the quality of the humanitarian intervention in Haiti.³¹ Instead, drawing on a survey about how humanitarian actors in Haiti understood the rights-based approach and the role of metrics developed within the humanitarian aid system, we analyze how principles in the humanitarian aid system might differ in meaning and application from similar principles in the legal framework of human rights. In doing so, we expose the mismatch between the humanitarian aid system’s understanding of a rights-based approach and the legal framework of human rights. We argue that a humanitarian response that does not engage with the legal framework of human rights may not properly define relationships between rights-holders and duty-bearers, may bypass the state, and may not fully enhance the ability of disaster-affected persons to benefit from two of the fundamental principles of human rights—participation and accountability.The scale of the disaster in Haiti will require humanitarian organizations to continue to play a role in providing services to the people of Haiti for years, as reconstruction and development plans begin to address long-term needs. While the survey data suggest that many humanitarian workers recognize the importance and necessity of a rights-based approach, this article calls for a clearer definition of the approach, in particular suggesting that the humanitarian aid system should explicitly acknowledge and analyze its relationship with the state. To do so, humanitarian and human rights actors should work to develop metrics to ensure interventions are rights-enhancing. Recent work by the Sphere Project to more fully integrate human rights principles into its standards—especially through the creation of a new set of standards on protection—should be applauded; though, the implications of changes to the 2011 Sphere Handbook are yet to be determined.³² Similarly, HAP’s work as a leader in recommending concrete steps to improve the accountability of humanitarian agencies through capacity-building and hands-on advice in very difficult circumstances must be recognized. Both agencies are undertaking important work on theThe state remains the primary duty-bearer in a post-natural disaster context. Interventions that seek to build the capacity of the state and that use of metrics to capture that capacity-building function should be an ultimate goal for the humanitarian aid system in the post-emergency phase of a natural disaster. Failing to involve the state adequately may lead to gaps in human rights protection, as disaster-affected people may lack avenues for participation or recourse for violations of their rights. Failing to measure that involvement through appropriate indicators and benchmarks will mean that the system cannot account for the impact of such activities.Ultimately, beyond Haiti, the humanitarian aid system—however well-intentioned, accountable, and participatory individual organizations intend to be—will fail to create lasting solutions for rights-holders unless it more robustly integrates human rights into disaster response. While rights-based language has taken hold among those providing humanitarian aid, ensuring that rights-based approaches fit within actionable human rights legal systems remains a work in progress. For the rights of persons affected by disaster to truly be protected, humanitarian actors and the human rights advocacy community must work together to develop metrics that more explicitly reflect the legal framework of rights and meaningfully support the disaster-affected state in meeting its human rights obligations.