Groningen Journal of International Law

International Law Under Construction

Whose Business is Hurricane Irma? Human Rights Responsibilities of Companies in Times of Disaster – Part II

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By Marlies Hesselman and Lottie Lane | m.m.e.hesselman@rug.nl  c.l.lane@rug.nl

This series of two blog posts builds on two recent articles by the authors on the human rights responsibilities of private actors during disasters, including companies and NGOs (here and here – open access).

As explained in Part I, several international initiatives have led to a common understanding that private companies are subject to both indirect and direct human rights duties or responsibilities, mostly to respect human rights. It was also established that such duties or responsibilities apply during all stages of disaster management. With these findings in mind, the current post particularly reflects on recent corporate responses to hurricanes in the Atlantic region.

Companies’ human rights responsibilities during Hurricanes Irma, Harvey and Maria

Shortly after Irma, Harvey and Maria wreaked havoc on many communities, and even before this, accounts emerged of how companies contributed (or did not contribute) to securing life, access to food, water, shelter and safety. It is of interest to assess their conduct in line with relevant related human rights standards during disasters, and important to consider whether relevant duties or responsibilities may have been breached.

A first good example of negative conduct, and thus potentially negative human rights impacts caused during Hurricane Irma, is provided by car service Uber, which allowed, at least temporarily, for a surge in its cab services prices during essential times of evacuation. Uber’s algorithm detected ‘scarcity’ on the transportation market, and therefore, following the principles of supply and demand, increased prices for transportation. Naturally, these higher prices may well have hampered effective evacuation opportunities for those without their own car transportation or sufficient means.

The Council of Europe has recently warned about the negative effects of algorithms on human rights protection in general, suggesting that companies might at all times bear a human rights responsibility to monitor and act on the negative effects of their big data analyses.

By contrast, several airlines in Florida actually proactively capped their flight prices and waived prices for additional luggage and bringing pets. In this manner, they did not only ensure effective respect for essential evacuation needs (and the associated rights to life and shelter) but possibly also contributed to positive human rights results.

In respect of the right to water, 7-Eleven franchises were also criticised for raising the price of bottled water in the days before Irma. Complaints by customers caused 7-Eleven head offices to respond by handing out some 1,600 water bottles for free – which, incidentally, is hardly a very high number and begs the question: to whom were these bottles of water given? Was there an effective remedy for those prevented from buying (more) water due to the raised prices? In fact, despite its temporary ‘price-gouging’, Uber also eventually offered free services to help evacuees reach the safety of shelters. Again, the same question applies: what about evacuation needs of those who considered costs too prohibitive initially?

In terms of shelter or housing, positive examples come from Airbnb, which listed apartments that would be available free of charge and encouraged hosts to open their homes to those displaced by Irma for free. In addition, various hotels in the region provided free rooms for Irma evacuees (e.g. here and here). In relation to disaster preparedness, Lowe’s DIY store locally maintains stockpiles of emergency supplies in disaster relief storage facilities and sent large amounts of supplies to Florida to help communities prepare for the damage that Irma would cause. They actively worked together with the Federal Emergency Management Agency to make sure that storm supplies were maintained in the areas hit by the hurricane. It also supplied 20,000 ‘emergency buckets’ of essential cleaning items, worth $500,000, and provided food and cots for 90 National Guards and Emergency Medical responders. As discussed in our papers, the positive contributions of companies can actually take many different forms, and private financial contributions can sometimes (far) outstrip public ones.

Finally, in terms of a right to access information and the life-saving qualities of such information in times of disaster, several IT companies offered their customers extra data usage or provided free data, considering people’s need to refresh weather data continuously. This essential access to information is also recognised in a self-regulatory document (discussed in our work) by telecom branch organisation GSMA. The document details how companies should work together with States to restore access to telecommunications in times of disaster, clearly recognising that “access to information is a basic human right […] particularly important during disaster situations”.

A key question for the human rights framework is whether all these corporate activities fundamentally rest on charity (or a moral duty) or whether actual hard or soft human rights responsibilities/duties exist for these companies. An additional question, also discussed in our articles, is how to practically operationalise relevant human rights duties or responsibilities, for example as part of ‘human rights-based’ (self-)governance approaches?

We submit that, as a result of current international law, including mostly the UN Guiding Principles on Business and Human Rights – see previous post – companies are at least under a direct (non-binding) responsibility to do no harm to essential human rights enjoyment in times of disaster. This may require action in the context of prevention, preparation, response and recovery in ways that will ensure that businesses do not negatively affect individuals’ opportunity to enjoy their rights to life, water, food, adequate housing or shelter. It is certainly of interest that the Committee on Economic, Social and Cultural Rights underscores that States ‘must prevent effectively infringements of economic, social and cultural rights in the context of business activities’, which requires them to ‘adopt legislative, administrative, educational and other appropriate measures’. Moreover, States’ obligation to fulfil rights ‘requires directing the efforts of business entities towards the fulfilment of Covenant rights’. On this point, we also argue that positive human rights contributions belong in the international human rights framework, if not also as a direct duty/responsibility, then certainly as an indirect duty by way of States regulating and mobilising maximum available private resources towards essential human rights protection.

As briefly touched upon in the previous post, a crucial point here is that companies are in many instances providing essential services and resources which the government may not be able to provide itself and which citizens cannot access through their own means and efforts. By delineating responsibilities in more detail – and by allowing, and expecting, in such processes a measure of human rights-based self-regulatory initiative on the part of companies alongside States – disaster management can become the truly multi-level, multi-actor, human rights-based effort it needs to be.

In fact, such a call for greater multi-stakeholder responsibility does not only fit in with developments in the present international human rights law framework, and with needs on the ground, but equally resonates with calls for multi-stakeholder involvement and applicability of human rights in the recent international disaster law instruments that were mentioned in the previous post. In any case, there is further scope for analysis here, along with a greater need for protection and accountability. Through this blog post, and particularly our articles, we hope to provide a valuable impetus to the debate.

Articles:

Hesselman & Lane (2017), ‘Disasters and Non-State Actors: A Human Rights-Based Approach‘, Disaster Prevention and Management 26(5), 526-539 (open access)

Lane & Hesselman (2017), ‘Governing Disasters: Embracing Human Rights Law in a Multi-Level, Multi-Actor Governance Sphere‘, Governance and Politics 5(2), 93-104 (open access)

 


marlies

Marlies Hesselman, LLM, is a Lecturer in International Law and finishing a PhD in international human rights law at the University of Groningen. Marlies’ research interests and publications relate to international disaster law, socio-economic human rights law, business and human rights, energy and climate and sustainable development law.

lottie

Lottie Lane, LLM, is a PhD Candidate at the Endowed Chair, Groningen Centre for Law and Governance. Her PhD research deals with the horizontal effect of international human rights from a law and governance perspective. Lottie’s wider research interests and publications include business and human rights, the human rights responsibilities of non-State armed groups and the role of human rights and non-State actors in disaster governance.

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