US Disaster Response Law vs. Human Rights Standards on Internal Displacement

“It’s not FEMA.  It’s not the state.  It’s not the city.  It’s the Stafford Act.  The system sucks.” 
— Mark Smith, Louisiana Homeland Security Office, quoted in State Offers to Turn Over FEMA Aid, The Times-Picayune, 1/27/07, p. A-1. 

The controlling federal law on national disasters and emergenices, the Robert T. Stafford Act, does not require governmental action to ensure the recovery of people and communities harmed by a disaster.  However, the international human rights standard, known as the United Nations’ Guiding Principles on Internal Displacement, establishes a comprehensive standard for recovery that establishes individual rights and governmental responsibilities.

For years, the US Government has recognized the Guiding Principles on Internal Displacement“as an important tool for dealing with situations of internal displacement” and welcomed the fact that an increasing number of countries “are applying them as a standard.”
— United Nations, Commission on Human Rights, Res. 2003/51, 4/23/2003; United Nations, General Assembly, Res. 54/167, 12/17/99; US State Department, USAID Assistance to Internally Displaced Persons Policy, PD-ACA-558, Oct. 2004.

But our government has failed to apply the Guiding Principles to protect people from New Orleans and the Gulf region who need them the most.


Recovery Issue


Robert T. Stafford Disaster Relief and  Emergency Act


United Nations’ Guiding Principles on Internal Displacement

Should the federal government have primary responsibility for disaster recovery? No.  States have primary responsibility for disaster recovery.  The federal government’s responsibility is limited to matters under exclusive federal control as established by the US Constitution or federal law.  All other federal responses to a disaster are discretionary acts that are completely immune from lawsuits. (42 USC §5191 and §5148) Yes.  National governments have the primary duty and responsibility to provide protection and humanitarian assistance to people who are displaced by a natural or man-made disaster.  (Principles 3 and 25)
Should the federal government be required to take precautions that can prevent displacement? No.  The federal government has the discretion to assist in the development of state mitigation plans and emergency preparedness programs.  The federal government also has the discretion to warn the public of hazards and reduce immediate threats to life, property, public safety, and health.  (42 USC §5165 and §5170b) Yes.  It is the obligation of national governments to prevent the conditions that can cause displacement. (Principle 5)
Should people who have been displaced by a disaster have a right to humanitarian assistance and assistance to either return to their residences or resettle? No.  Individuals do not have a legal right to assistance.  The federal government is not even required to provide essential assistance, which includes reduction of immediate life-threatening risks, emergency medical care, shelter, clearing roads and bridges, demolition of unsafe buildings, and dissemination of health and safety information.  (42 USC §5170b) Yes.  All displaced persons have the right to request and receive protection and humanitarian assistance from governmental authorities as well as the right to voluntarily return or resettle in safety and with dignity. (Principle 3, 25 and 28)
Should the federal government be required to ensure that displaced people can meaningfully participate in governmental decisions affecting recovery? No.  The Stafford Act does not require or address voting or civic participation; nor does the Stafford Act require or address participation of displaced persons in recovery planning and management. Yes.  Displaced persons have the right to vote and participate in governmental and public affairs. National governments have the obligation to make special efforts to ensure the full participation of displaced persons in planning and management of return, resettlement, and reintegration. (Principle 22 and 28)
Should displaced people be protected from governmental actions that result in discriminatory impacts? No.  Although the federal government is prohibited from discriminating on the basis of race, color, nationality, disability or English language proficiency (42 USC §5151 and Katrina Reform Act §689(a), courts have limited this obligation to only prohibit an intentional act of discrimination, not an act that results in a discriminatory impact. Yes.  Displacement that is aimed at or results in “ethnic cleansing” or altering the racial, ethnic or religious composition of the affected population is prohibited.  Displaced persons have a right to governmental assistance and protection that does not intentionally discriminate or result in a discriminatory impact based on race, color, nationality, sex, age, economic status, disability, political opinion, ethnic or social origin, disability, property, or birth status.  (Principles 4, 6, 18 and 24)
Should displaced people have the right to housing, education, and healthcare? No.  Any housing assistance is provided at the discretion of the federal government (42 USC §5174(b).  Temporary housing assistance cannot exceed a period of 18 months (42 USC §5174(c)).  Temporary educational facilities can be provided at the discretion of the federal government (42 USC §5170b.a.3.D).  Emergency medical care and reduction of immediate threats to life and health can be provided at the discretion of the federal government (42 USC §5170b.a.3.D).  The rebuilding of medical facilities is also discretionary (42 USC §5172). Yes.  Displaced persons have the right to:  housing that requires governments to provide temporary housing for the duration of the displacement, and support for the rebuilding of permanent homes; education that requires governments to make education and training facilities available as soon as conditions permit; and medical services, including psychological and social services (Principles 18, 19, 23, 28 and 29).