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Legal Disaster Risk Reduction Cooperation During Ecuador's Earthquake

Published online by Cambridge University Press:  31 December 2019

Hugo Cahueñas
Hugo Cahueñas*
Affiliation:
Professor at Universidad San Francisco de Quito; PhD at World Trade Institute-University of Bern.
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Extract

In 2010, Haiti's 7.0 magnitude earthquake resulted in more than 200,000 deaths and more than one million homeless. This event recaptured the attention of international society regarding disaster-related governmental policies and legislation. In 2011, Resolution 7 of the International Conference of the Red Cross reiterated the urgency for states to be prepared to facilitate and regulate any international disaster assistance, using the Guidelines for the domestic facilitation and regulation of international disaster relief and initial recovery assistance (also known as the “IDRL Guidelines”). The International Conference adopted these guidelines in 2007; nevertheless, several countries did not implement the recommendations of the IDRL guidelines before the Haiti earthquake. Such was the case of Ecuador, which, after 2010, began to work on the implementation of the IDRL guidelines. In the beginning, public officials were very skeptical about the IDRL Guidelines as a tool for mitigating the consequences of disasters.

Information

Type
The Critical Contribution of Law Toward Global Efforts to Mitigate Disaster Risk
Information
Proceedings of the ASIL Annual Meeting , Volume 113 , 2019, pp. 133 - 136
Copyright
Copyright © 2019 by The American Society of International Law

Introduction

In 2010, Haiti's 7.0 magnitude earthquake resulted in more than 200,000 deaths and more than one million homeless.Footnote 1 This event recaptured the attention of international society regarding disaster-related governmental policies and legislation. In 2011, Resolution 7 of the International Conference of the Red Cross reiterated the urgency for states to be prepared to facilitate and regulate any international disaster assistance, using the Guidelines for the domestic facilitation and regulation of international disaster relief and initial recovery assistance (also known as the “IDRL Guidelines”).Footnote 2 The International Conference adopted these guidelines in 2007; nevertheless, several countries did not implement the recommendations of the IDRL guidelines before the Haiti earthquake. Such was the case of Ecuador, which, after 2010, began to work on the implementation of the IDRL guidelines. In the beginning, public officials were very skeptical about the IDRL Guidelines as a tool for mitigating the consequences of disasters.

In 2013, finally, Ecuador published a study that identified the gaps in Ecuadorian legislation according to the IDRL Guidelines.Footnote 3 Due to this study, some institutions adopted new regulations. For instance, in 2014, the Civil Aviation authority adopted a resolution that includes specific provisions related to relief flights.Footnote 4 Moreover, the government created an IDRL working group, which had a meeting just a few days before the earthquake.

Legal Cooperation During Ecuador's Earthquake

Based on the recommendations contained in the IDRL study, the government of Ecuador adopted several regulations to respond to the April 2016 earthquake. For instance, the national authorities adopted: (1) a resolution that activated international cooperation protocolsFootnote 5; (2) a resolution regulating the situation of NGOs without legal status in the countryFootnote 6; and (3) a resolution granting privileges in telecommunication services in the area affected by the earthquake for national and international emergency teams.Footnote 7 Moreover, as the committee had a meeting before the quake, everyone knew each other. Consequently, the protocols for the facilitation of the international cooperation worked well on the response to the disaster.

Nevertheless, the leading legal problem was associated with land tenure because around 80 percent of the population, in both rural and urban areas, did not have access to formally recognized land titles for many years.Footnote 8 In the beginning, the government's reconstruction plan was released to only benefit the legally recognized owners of the land, who could provide proof of property ownership through a formal title registered at the property public office.Footnote 9 On top of that, the government informed shelter actors that any emergency or transitional assistance could exclude beneficiaries from future government subsidies.Footnote 10 Under this context, the Shelter and Protection Clusters established a Housing, Land and Property (HLP) Working Group. This Group advocated with the National Authorities to include the most vulnerable people in the reconstruction process. Mainly, the HLP Working Group based its arguments on general comments from the Committee on Economic, Social and Cultural Rights.Footnote 11 Due to this advocacy process, the Ministry of Housing adopted a new regulation making informal tenants eligible under the reconstruction plan and to receive international assistance.Footnote 12 Additionally, the HLP Working Group recommended to the national and the local governments to implement regularization processes as part of the reconstruction. International cooperation supported the legalization process. By March 2019, 420 families had benefited from this process.Footnote 13

These two scenarios show how legal preparedness directly impacts the capacity or vulnerability of the communities during a disaster. However, these are only two areas; the heart of the issue is the disaster risk reduction system.

Disaster Risk Governance and the Duty to Cooperate

The Sendai Framework for Disaster Risk Reduction establishes as a priority “strengthening disaster risk governance.”Footnote 14 Disaster risk reduction for resilience includes, among other aspects: structural and non-structural measures; revision and development of building codes; financial mechanisms and insurances; health systems; and environmental management.Footnote 15 Additionally, Sendai determines guidelines for international cooperation and global partnership, including means of implementation and support from international organizations.Footnote 16 Sendai recognizes that developing countries require international cooperation for strengthening their efforts to reduce disaster risk, including a variety of sources, among others: research capacity, knowledge, ideas, and know-how.Footnote 17 On the top of that, the Sendai Framework says that it is necessary that “the Inter-Parliamentary Union and other relevant regional bodies and mechanisms for parliamentarians, as appropriate, to continue supporting and advocating disaster risk reduction and the strengthening of national legal framework.”Footnote 18

According to the UN Charter, states have the duty to cooperate as a principle of international law.Footnote 19 Specifically, according to the UN Charter, the international community has to take adequate measures for the prevention and removal of threats to international peace and security.Footnote 20 Besides, another purpose of the UN is “to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all….”Footnote 21 This cooperation should also follow human rights standards. For instance, the International Covenant on Economic, Social, and Cultural Rights (ICESCR) identifies the right to an adequate standard of living, including adequate food, clothing, and housing, and the right to the continuous improvement of living conditions.Footnote 22 However, the ICESCR´s rights are subject to the progressive realization, individually and through international cooperation, especially economic and technical, to the maximum of its available resources.Footnote 23 However, states have the primary responsibility to ensure disaster risk reduction, response, and recovery to disasters in their territory. For example, in Budayeba v. Russia, the European Court of Human Rights declared that the state was responsible for the deaths and destruction of property caused by a succession of mudslides.Footnote 24 Therefore, states must prevent human rights violations, including the prevention of disasters. Disaster risk reduction policy is binding for states. Consequently, to protect human rights, international cooperation is essential to strengthening the legal framework as a means for reducing the risk of disaster.

Shifting the focus from a primarily response-assistance model to one focused on DRR, states must take all appropriate measures, including international cooperation, to prevent disasters from accomplishing these human rights obligations.Footnote 25 Therefore, the interpretation of International Law Commission Draft Articles must contemplate this human rights approach.Footnote 26

Required Legal Disaster Risk Reduction Cooperation in Ecuador

The Ecuadorian Constitution expressly addresses the disaster risk management topic.Footnote 27 Indeed, the state must “protect persons, communities and nature against the adverse impacts of natural or manmade disasters by risk prevention, disaster mitigation, restoration and improvement of social, economic and environmental conditions ….”Footnote 28 The same constitutional article creates the National Decentralized Risk Management System, which is integrated by the “risk management units from all local, regional, and national public and private institutions.”Footnote 29 The Constitution dictates that the state leads the disaster risk management system by a technical body established by an Act.Footnote 30 Nevertheless, since 2008, Ecuador has not adopted the Disaster Risk Management Act to implement constitutional principles. Rules are not the solution; however, law is a tool.

In Ecuador, the constitutional tool requires regulation. Actually, during the response to the 2016 earthquake, the lack of governability was evident because the authorities did not adapt the actions of response to the existing legal framework; on the contrary, there was an overlapping of functions and institutions.Footnote 31 Consequently, Ecuador requires technical cooperation to strengthen disaster risk governance. For instance, the legislation should regulate international cooperation for disaster risk reduction, not only for the response to a disaster. International cooperation should promote legal and institutional resilience of the society.

Footnotes

1 Int'l Fed'n of Red Cross and Red Crescent Societies (IFRC), World Disaster Report Focus on Urban Risk 11 (Denis McClean ed., 2010).

2 Int'l Conf. of Red Cross, Resolution 7 “Normative Frameworks and Addressing Regulatory Barriers Concerning Disaster Mitigation, Response and Recovery” (2011).

3 Hugo Cahueñas, Estudio sobre preparativos legales para la asistencia internacional en caso de desastre en Ecuador, CRE/FICR, 22 (2013), available at http://www.ifrc.org/PageFiles/140130/IDRL%20Ecuador%20Study%20(final).pdf

4 Resolution 17, No. 397 of Civil Aviation of 16 de December 2014, related to relief flights, in light of the findings of an IDRL study produced by the Ecuador Red Cross in 2013, available at https://www.ifrc.org/Global/Publications/IDRL/DM%20acts/REGLAMENTO_PERMISOS_DE_OPERACION_PARA_PRESTACION_DE_TRANSPORTE_AEREO.pdf

5 Emergency Resolution (Apr. 17, 2016), available at http://www.gestionderiesgos.gob.ec/wp-content/uploads/downloads/2016/04/Resolución-de-Emergencia-SGR-001-20161.pdf (enabling international cooperation protocols and asking for international support to respond to the April 2016 earthquake).

6 R. 031, SETECI, Technical Cooperation Secretary.

7 R. 0437 ARCOTEL, May 2016, available at http://www.arcotel.gob.ec/wp-content/uploads/downloads/2016/05/Resolucion-0437-ARCOTEL-2016.pdf.

8 Global Shelter Cluster, Shelter Projects 2017–2018 (International Organization for Migration (IOM), 2019), available at http://www.shelterprojects.org/shelterprojects2017-2018/ShelterProjects_2017-2018_lowres_web.pdf

9 Id.

10 Id.

11 Committee on Economic, Social and Cultural Rights, General Comment No. 4, UN Doc. E/1992/23 (Dec. 13, 1991) (“The Right to Adequate Housing”). Committee on Economic, Social and Cultural Rights, General Comment No. 7, UN Doc. E/1998/22 (May 20, 1997) (“The Right to Adequate Housing: Forced Evictions”).

12 MIDUVI Agreement 022-16 of 16 April 2016.

13 Global Shelter Cluster, supra note 8.

14 GA Res.69/283, Annex II, Sendai Framework for Disaster Risk Reduction 2015–2030, para. 26 (June 23, 2015) [hereinafter Sendai Framework].

15 Id., para. 30.

16 Id., paras. 38–48.

17 Id., para. 38–40.

18 Id., para. 48.h.

19 UN Charter, Arts. 1(3), 55–56.

20 Id. Art. 1(1).

21 Id. Art. 1(3).

22 International Covenant on Economic, Social and Cultural Rights, Art. 11, Dec. 16, 1966, 993 UNTS 3.

23 Id. Art. 2(1).

24 Budayeva v. Russia, 2008-II Eur. Ct. H.R. 267.

25 Hugo Cahueñas, Disaster Risk Reduction Cooperation for the Protection of Persons in the Event of Disasters, in The Cambridge Handbook of Disaster Risk Reduction and International Law 87–106 (Katja L. H. Samuel, Marie Aronsson-Storrier, & Kirsten Nakjavani Bookmiller eds., 2019).

26 Id.

27 Constitución de la República de Ecuador [Const.Ecuador], Arts. 389–90.

28 Id. Art. 389.

29 Id.

30 Id.

31 Hugo Cahueñas, Sin ley ni organismo técnico: la institucionalidad de la gestión de riesgo de desastres en la respuesta al terremoto de 2016 en Ecuador, 30 Foro, Revista De Derecho 51–56 (2018).