Introduction

Eight months after Hurricane Maria, recovery efforts are still under way in Puerto Rico.[1]  As more than 50,000 hurricane victims were still without power as of mid-April 2018,[2] shortcomings in the implementation of disaster management by competent authorities continue to be documented.[3]

This essay contributes to the important and necessary discussion on the situation in Puerto Rico in the aftermath of Hurricane Maria by assessing disaster recovery there through a human rights lens.  It argues that implementation of the human rights-based approach (HRBA) to disaster management would have resulted in a more effective recovery strategy in so far as it would have tailored recovery efforts specifically to the needs and protections of disaster victims. For the purposes of this essay, an HRBA to disaster management is a conceptual and operational framework developed by committees of experts that monitor State compliance with UN human rights treaties, also known as human rights treaty bodies.[4]  After providing background information on the impact of Hurricane Maria on Puerto Rico, this essay introduces the HRBA to disaster management and emphasizes, in particular, its innovative reach.  Lastly, this essay considers the excessive number of deaths that occurred in the months following Maria to show how implementation of the HRBA to disaster management would have minimized loss of lives and made a difference to the inhabitants of Puerto Rico.

  1. Hurricane Maria: Impact and Flaws in its Management

Hurricane Maria decimated Puerto Rico on September 20, 2017, a few weeks after Hurricane Harvey ravaged Texas and Hurricane Irma hit Florida,[5] thereby making the end of summer 2017 uniquely challenging for the United States (U.S.) in terms of disaster management.  Hurricane Maria, however, was “a different class of disaster than Hurricanes Irma and Harvey.”[6]  As Jeff Weber, a meteorologist at the National Center for Atmospheric Research put it, “[i]t was as if a 50- to 60-mile-wide tornado raged across Puerto Rico, like a buzz saw.”[7]  This being so, it is not surprising that the damage that Hurricane Maria caused had catastrophic dimensions.  According to UN estimates, the number of houses that Maria destroyed ranges from 30,000 to 90,000,[8]  and it is well-known that Maria obliterated Puerto Rico’s electric grid, thereby halting local provision of potable water since equipment to make water available to households and other facilities cannot work without power.[9]

How did local and federal authorities respond to Hurricane Maria?  How were their recovery efforts?  While the U.S. reacted swiftly and with urgency to the damage Hurricanes Harvey and Irma caused in Texas and Florida, the U.S.’s relief to Puerto Rico in the aftermath of Hurricane Maria has fallen significantly short.  The disaster assistance that local and federal authorities have provided to the inhabitants of Puerto Rico has not matched the magnitude of the destruction ensuing from the hurricane and lacked leadership at the highest levels of the federal government.[10]  Moreover, said assistance was slow and has worsened the situation of hurricane affected persons.[11]

One of the most glaring indicators of the ineffectual disaster management in Puerto Rico is the excessive number of deaths that occurred in the months following Hurricane Maria.  Reports published in December 2017 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 various medical conditions such as sepsis and respiratory problems.[12]  Though several complex factors account for the unexpected and dramatic number of casualties, this essay focuses specifically on the lack of timely provision of health care due to discoordination between civilian and military health care providers involved in the Hurricane Maria recovery effort.  It has been reported that military health officials deployed in Puerto Rico on the U.S. Navy Hospital Ship Comfort in order to support overwhelmed local clinics and hospitals between October 3 and mid-November 2017, saw fewer Hurricane Maria victims than those that they could have actually treated for three main reasons.  First, local medical providers did not understand the protocol for the referral of patients to the military doctors as laid down by FEMA staff and local authorities once the Comfort arrived in Puerto Rico, thirteen days after Hurricane Maria struck. [13]  Second, in areas without working cell phones, land lines, and satellite phones it was impossible to refer patients to the military doctors.[14]  Third, federal authorities’ failure to organize a well-coordinated military effort in Puerto Rico limited the military doctors’ ability to work together with local medical providers in order to deliver timely medical care to hurricane victims.[15]

The lack of timely provision of health care must also be read in light of reports suggesting that the contrast between the relief provided to disaster victims in Florida and Texas and the assistance delivered to those in Puerto Rico (including medical assistance) can be ascribed to the fact that Puerto Rico is an “unincorporated territory” rather than a State of the United Sates.  As a result of this legal status, the people of Puerto Rico have statutory U.S. citizenship which does not entitle them to the same rights and legal protections of other U.S. citizens.[16]

  1. The Human Rights-Based approach to Disaster Management

The situation in Puerto Rico could have been different had the U.S. taken the human rights-based approach (HRBA) to disaster management there.  The HRBA to disaster management has been developed by committees of international experts that monitor State compliance with UN human rights treaties, the so-called human rights treaty bodies.[17]  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 rights or dimensions of rights that, in the view of the treaty bodies, are most at stake during disasters. For example, the right to life, and the rights to food and adequate housing, which under UN human rights law are part of the normative content of the right to an adequate standard of living.[18]  The HRBA requires that the following pivotal human rights principles underpin disaster management: the principles of non-discrimination and equality; the principle whereby the protection and needs of those who are disproportionately affected by the harms of a disaster have to be  addressed 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 justice and reparations in cases where they have suffered rights violations as a result of disaster mismanagement.[19] The HRBA supersedes a notion of disaster response meant as a mere logistical effort to alleviate the sufferings of needy disaster-affected persons to replace it with a notion of disaster management that revolves around the satisfaction of disaster victims’ protection needs through implementation of their human rights.  The HRBA to disaster management 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.

  1. How Implementation of the HRBA to Disaster Management Would have Minimized Loss of Lives in Puerto Rico

The HRBA to disaster management is an operational and conceptual framework that is not new to the U.S.  The UN Human Rights Committee analyzed the U.S.’s second and third periodic reports on the implementation of the 1966 UN Covenant on Civil and Political Rights in 2006,[20] and made important recommendations on 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 U.S.[21]  One of these recommendations concerned 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,”[22] as set out in Article 26 of the UN Covenant.  Accordingly, the Committee recommended that the U.S. 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.”[23]  The Committee’s recommendation can be interpreted as suggesting that U.S. disaster management strategies, in order to comply with Article 26, generally must not neglect disaster victims’ domestic rights with regard to access to health care.  Furthermore, any neglect 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 above UN Covenant is contained in the UN Inter-Agency Standing Committee Operational Guidelines on the Protection of Persons in Situations of Natural Disasters.[24]  The guidelines were prepared in 2011 and help understand how to implement provisions contained in UN Human Rights treaties in natural disaster settings.  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; disaster victims who have developed medical conditions as a result of the impact of a natural disaster; and disaster victims who have developed medical problems during the overall humanitarian response.[25]

In its management of Hurricane Maria in Puerto Rico, the U.S. should not have overlooked the recommendation of the Human Rights Committee.  The U.S. should have implemented the HRBA to disaster management embedded in the recommendation read together with Operational Guideline B.2.5.  Implementing the HRBA to disaster management would have made the U.S. more mindful of the various health needs that Hurricane Maria victims were likely to have in the aftermath of the disaster, and would have paved the way to the realization of these persons’ domestic rights relevant to access to health care.  This approach would have made competent authorities strive for early and well-thought-out planning of arrangements, including coordination arrangements, for the timely provision of health care by all the providers involved in the recovery from Hurricane Maria to all the affected persons who needed it.

Put more simply, the implementation of the HRBA to disaster management 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 facia 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.

Conclusions

The HRBA to disaster management is a conceptual and operational framework that if duly implemented can radically change the way in which competent governmental authorities deal with disasters.  The HRBA to disaster management is tailored to the protection needs of disaster victims; averts the risk that some of them may be subjected to unlawful differential treatment; and empowers disaster victims.  Equally important, the HRBA to disaster management highlights, for stakeholders involved in disaster management, steps and strategies to undertake in order to provide timely and effective relief to all affected individuals and build resilience to disasters.  Implementation of the HRBA to disaster management in Puerto Rico would have made a difference: it would have contributed to save lives and afforded Hurricane Maria victims disaster assistance on an equal footing.  Lack of its implementation indicates the need for the U.S. to review follow-up on the UN Human Rights Committee’s recommendations on disaster management. The review should result in: extrapolation of lessons learned encapsulating the HRBA to disaster management; application of the lessons to future disaster settings; and, more fundamentally, a re-conceptualization of disaster risk reduction, preparedness, response, and recovery through a human rights lens so as to make them fairer, more inclusive, and disaster victims-centered.


[1]  Nicole Acevedo and Istra Pacheco, No Deeds, No Aid to Rebuild Homes: Puerto Rico’s Reconstruction Challenge,” nbcnews (May 8, 2018) (available at https://www.nbcnews.com/storyline/puerto-rico-crisis/no-deeds-no-aid-rebuild-homes-puerto-rico-s-reconstruction-n868396, accessed on May 9, 2018).

[2]  Danny Vinik, FEMA’s Plan Underestimated Puerto Rican Hurricane, Politico (Apr. 15, 2018) (available at https://www.politico.com/story/2018/04/15/puerto-rico-hurricane-fema-disaster-523033, accessed on May 3, 2018).

[3]  Id. See also: Danica Coto, US Questions Why Power not Fully Restored in Puerto Rico, The Washington Post (May 8, 2018) (available at https://www.washingtonpost.com/world/the_americas/us-questions-why-power-not-fully-restored-in-puerto-rico/2018/05/08/ff11624c-52e0-11e8-a6d4-ca1d035642ce_story.html?utm_term=.40bd4363f5be, accessed on May 9, 2018); Arelis R. Hernández, Sluggish Recovery from Hurricane Maria Reignites Calls for Puerto Rico’s Statehood, Independence, The Washington Post (Apr. 28, 2018) (available at https://www.washingtonpost.com/national/the-struggle-to-recover-from-hurricane-maria-reignites-calls-for-puerto-ricos-statehood-independence/2018/04/28/e9284fe2-2c7d-11e8-8688-e053ba58f1e4_story.html?noredirect=on&utm_term=.0fec855da9d7, accessed on May 3, 2018); and Danny Vinik, How Trump Favored Texas over Puerto Rico, Politico (Mar. 29, 2018) (available at https://www.politico.com/story/2018/03/27/donald-trump-fema-hurricane-maria-response-480557, accessed on May 4, 2018).

[4]  Office of the UN High Commissioner for Human Rights, Monitoring the Core International Human Rights Treaties, (2018) (available at http://www.ohchr.org/EN/HRBodies/Pages/TreatyBodies.aspx, accessed on May 3, 2018).

[5] While this short essay exclusively deals with the management of Hurricane Maria in Puerto Rico, it should not be forgotten that Hurricane Irma struck the northern part of Puerto Rico on September 7, 2017 before making landfall in Florida on September 10, 2017.  Hurricane Harvey, on the other hand, hit Texas on August 25, 2017.

[6] Robinson Meyer, What’s Happening With the Relief Effort in Puerto Rico? The Atlantic (Oct. 4, 2017) (available at https://www.theatlantic.com/science/archive/2017/10/what-happened-in-puerto-rico-a-timeline-of-hurricane-maria/541956/, accessed on Apr. 24, 2018).

[7] Brian Resnick, Why Hurricane Maria is such a Nightmare for Puerto Rico, Vox (Sep. 22, 2017) (available at https://www.vox.com/science-and-health/2017/9/21/16345176/hurricane-maria-2017-puerto-rico-san-juan-meteorology-wind-rain-power, accessed on Apr. 27, 2018).

[8]  Office of the UN High Commissioner for Human Rights, Puerto Rico: Human Rights Concerns Mount in Absence of Adequate Emergency Response, (Oct. 30, 2017) (available at http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22326&LangID=E , accessed on Apr. 27, 2018).

[9]  Kurtis Lee and Milton Carrero Galarza, Two Months after Hurricane Maria, Puerto Rico Struggles to Regain Electricity and Thousands Flee the Island, Los Angeles Times (Nov. 19, 2017) (available at http://www.latimes.com/nation/la-na-puerto-rico-electricity-20171118-story.html, accessed on May 4 2018); Devika Krishna Kumar, Power Crews Scramble to Puerto Rico after Maria Smashes its Grid, Reuters (Sept. 21, 2017) (available at https://www.reuters.com/article/us-storm-maria-puertorico-power/power-crews-scramble-to-puerto-rico-after-maria-smashes-its-grid-idUSKCN1BW2OF, accessed on May 4, 2018); Mekela Panditharatne, FEMA Says Most of Puerto Rico has Potable Water. That Can’t Be True, The Washington Post (Dec. 21, 2017) (available at https://www.washingtonpost.com/outlook/fema-says-most-of-puerto-rico-has-potable-water-that-cant-be-true/2017/12/21/cf8d8ce0-e511-11e7-a65d-1ac0fd7f097e_story.html?utm_term=.fc1e74fe76ef, accessed on Apr.  25, 2018).

[10] See Vinik, supra notes 2 and 3; supra note 6; Jeremy Konyndyk, Hurricane Maria Killed 64 Puerto Ricans. Another 1,000 Died Because the Disaster Response Was Inadequate, The Washington Post (Dec. 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/?utm_term=.40ba58c3e232, accessed on Apr. 24, 2018); and Alice Thomas, Meeting the Urgent Needs of Hurricane Maria Survivors in Puerto Rico, Refugee International Field Report (Dec. 2017) (available at https://static1.squarespace.com/static/506c8ea1e4b01d9450dd53f5/t/5a55010253450af99e85b5be/1515520286161/RI_Puerto+Rico_Advocacy+Report+2018+New1-8-18.pdf).

[11]  Id.

[12]  Frances Robles, Kenan Davis, Sheri Fink and Sarah Almukhtar, Official Toll in Puerto Rico: 64. Actual Deaths May Be 1,052, The New York Times (Dec. 9, 2017) (available at https://www.nytimes.com/interactive/2017/12/08/us/puerto-rico-hurricane-maria-death-toll.html?_r=0, accessed on Apr. 24, 2018); and  Konyndyk, supra note 10.

[13] Leyla Santiago and Mallory Simon, There’s a Hospital Ship Waiting for Sick Puerto Ricans — but No One Knows How to Get on It, CNN (Oct. 17, 2017) (available at http://www.cnn.com/2017/10/16/health/puerto-rico-hospital-ship/index.html, accessed on Apr. 24, 2018); and Sean Breslin, As Health Crisis Looms in Puerto Rico, Navy Hospital Ship Sits Mostly Empty, (Oct. 20, 2017) (available https://weather.com/news/news/2017-10-18-puerto-rico-health-crisis-hurricane-maria-usns-comfort, accessed on Apr. 25, 2018).

[14] Frances Robles and Sheri Fink, Amid Puerto Rico Disaster, Hospital Ship Admitted Just 6 Patients a Day, The New York Times (Dec. 6, 2017) (available at https://www.nytimes.com/2017/12/06/us/puerto-rico-hurricane-maria-hospital-ship.html, accessed on Apr. 28, 2018).

[15]   Dan Lamothe, Clinton Pressed Trump to Deploy Hospital Ship Comfort to Puerto Rico. Now it’s Preparing to Go, The Washington Post (Sept. 26, 2017) (available at https://www.washingtonpost.com/news/checkpoint/wp/2017/09/26/clinton-pressured-trump-to-deploy-hospital-ship-comfort-to-puerto-rico-now-its-on-the-way/?utm_term=.9c49f03b1b44, accessed on Apr. 27, 2018); and Craig Hooper, It Took Comfort 39 Days to Get Pierside in Puerto Rico. That’s a National-Security Problem, Defense One (Nov. 6, 2017) (available at https://www.defenseone.com/ideas/2017/11/hospital-ships-hurricane-maria/142319/, accessed on Apr. 28, 2017).

[16]  Vinik , supra note 3; supra note 8;  Nick Cumming-Bruce and Frances Robles, U.S. Response to Storm-Hit Puerto Rico is Criticized by U.N. Experts, The New York Times (Oct. 30, 2017) (available at https://www.nytimes.com/2017/10/30/us/puerto-rico-whitefish-fbi-power-.html, accessed on Apr. 28, 2018); Puerto Rico is Still in the Dark, The Washington Post (Nov. 17, 2017) (available at  https://www.washingtonpost.com/opinions/puerto-rico-is-still-in-the-dark/2017/11/17/7b516f94-c981-11e7-8321-481fd63f174d_story.html?utm_term=.511b72d78ec6, accessed on Apr. 29, 2018).

[17]  See for instance: Human Rights Committee, Concluding Observations on the Initial Report Haiti, CCPR/C/HTI/CO/1, para. 18 (Nov. 2014); Committee on the Elimination of Racial Discrimination, Concluding Observations on the Fourth, Fifth and Sixth Periodic Reports of the USA, CERD/C/USA/CO/6, para. 31 (May 2008); Committee on the Rights of Persons with Disabilities, Concluding Observations on the Initial Report of Nepal, CRPD/C/NPL/CO/1, para. 20 (March 2018); and Committee on the Elimination of Discrimination against Women, General Recommendation No. 37 on Gender-Related Dimensions of Disaster Risk Reduction in the Context of Climate Change, CEDAW/C/GC/37 (Feb. 2018).

[18]  Committee on Economic Social and Cultural Rights, General Comment No. 4, The Right to Adequate Housing (Sixth Session 1991) E/1992/23; and General Comment No. 12, The Right to Adequate food (Twentieth Session 1999) E/C.12/1999/5.

[19]  Supra note 17.  For analysis of the HRBA to disaster management see also: Walter Kalin, A Human Rights-Based Approach to Building Resilience to Natural Disasters (June 2011) (available at https://www.brookings.edu/research/a-human-rights-based-approach-to-building-resilience-to-natural-disasters/); and Ingrid Nifosi-Sutton, A Human Rights-Based Vulnerability Paradigm: Lessons from the Case of  Displaced Women in Post-Quake Haiti, in Routledge Handbook of Human Rights and Disasters, Chapter 18 (Sommario E. et Al. (eds.) (Mar. 2018).

[20] 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.

[21] Human Rights Committee, Concluding Observations on the Second and Third Periodic Reports of the USA, CCPR/C/USA/CO/3/Rev.1, para. 26 (Dec. 2006).

[22] Human Rights Committee, General Comment No. 18: Non-Discrimination (Nov. 10, 1989) HRI/GEN/1/Rev.9 (Vol. I), para. 12.

[23]  Supra note 21.

[24] The guidelines are available  at http://www.ohchr.org/Documents/Issues/IDPersons/OperationalGuidelines_IDP.pdf.

[25]  Id.