Book Description

This Article argues that the failure of the international earthquake response in Haiti is the result of past and current policies that, however well intentioned, fail to adequately respect the human rights of Haitians, especially Haiti's poor. It demonstrates that while the earthquake created new acute human rights challenges for Haiti, it also exposed the disastrous effects of decades-old policies that systematically undermine the Haitian government's ability to provide basic governmental services and meet the needs of the majority of its people. A legacy of debt and international trade policies has incapacitated the Haitian government, and lack of enforcement of the rule of law has made Haiti' s poor disproportionately vulnerable to natural disasters. Haiti' s earthquake illustrates that the most severe humanitarian emergencies are most often symptomatic of and contributory to a larger human rights emergency. A successful disaster response must place human rights at the center. Under international law, the Haitian government has the primary obligation to realize the human rights of its people, but natural disasters make it difficult for states, already lacking capacity due to resource constraints, to assert full control over policies that are central to their ability to fulfill their human rights obligations. In this context, the international community has an obligation to support the Haitian government toward the realization of rights, and their human rights obligations inhere to regulate their interventions. The most striking aspect of the response to the earthquake in Haiti is perhaps the decision to treat Haiti as a charity case rather than as a space where legal obligations exist and guide interventions. This Article presents legal and practical arguments for why a human rights-based approach is essential to successful disaster response and shows how a failure to prioritize this framework continues to reinforce Haiti's vulnerability to disasters. A human rights-based approach places human rights protection and realization at the center of international assistance, ensuring that the plans, policies, and processes of international assistance are “anchored in a system of rights and corresponding obligations established by international law.” The rights-based approach ensures that the aim of all activities is to contribute directly to the realization of rights by prioritizing capacity building, participation, transparency, accountability, and nondiscrimination. In Haiti, aid has largely been delivered outside this framework, with a focus on distributions to meet immediate needs at the cost of investing in long-term infrastructure and structural reform. This Article argues that while the practical reality of humanitarian disasters sometimes contains a tension between competing needs, an overemphasis on this tension risks overlooking the interconnectedness between humanitarian relief and human rights enforcement. The UN of the High Commissioner for Human Rights (“OHCHR”) has identified two chief rationales for the human rights-based approach: (a) “the intrinsic rationale,” which acknowledges that a human rights-based approach is legally mandated; and (b) “the instrumental rationale,” which recognizes that it enables better and more sustainable results. This Article begins by examining the legal rationale for the rights-based approach. Part I provides an introduction to the content and sources of the rights-based approach, and then explores the legal obligations of donor states and non-state actors to work within this framework. Part II uses Haiti as a case study to argue that the rights-based approach must be implemented as a matter of best practice even where legal obligations do not demand it. This Part demonstrates that Haiti's recent disasters are not only natural, but also stem from systemic human rights violations that must be addressed. It shows that the rights-based approach enables more successful programming because it ensures project effectiveness and guides investment towards those actors that can ensure project sustainability. If Haiti is to see a different future, the international community must actively implement a rights-based approach to its interventions and programming in Haiti.