On 6
February 2023, Türkiye and Syria
experienced two devastating earthquakes which affected the lives of more than
24 million people. The death toll has passed 30.000, and the UN
fears that the figure could double. The number of injured and homeless people is
far worse. According to Ross Stein, the head of catastrophe modelling company
Temblor, “the number one factor [was] building
quality”. Other seismologists and engineers argue that building standards and failure to
enforce them have contributed to a high death toll.
These claims trigger a set
of questions from a human rights standpoint. In particular, while no doubt that
loss of life and destruction of property is expected following a 7.8 magnitude
earthquake, the question is whether the State had taken all the necessary
measures to minimise the loss of life (Article 2 ECHR), protect the right to
private and family life (Article 8 ECHR), and prevent the destruction of
property (Article 1 of Protocol No. 1).
The European Court of Human Rights has found in
M. Özel and Others v. Turkey that,
while States have no control over earthquakes, they are under an obligation to
adopt “measures geared to reducing their effects
in order to keep their catastrophic impact to a minimum. In that respect,
therefore, the prevention obligation comes down to adopting measures to
reinforce the State’s capacity to deal with the unexpected and violent nature
of such natural phenomena as earthquakes” (para. 173). The Court has further explained
that such measures include “appropriate spatial planning and controlled urban
development” (para. 174). Even though the complaint was out of time, the Court
found it relevant to note that “the local authorities which should have supervised and inspected [the
respective] buildings had
failed in their obligations to do so” (para. 175).
The Court’s approach in M. Özel and Others v. Turkey confirms States’
positive obligations to protect the right to life also in the context of
natural disasters, including earthquakes. The ECtHR is mindful that protection
of all lives is not always possible. After all, the duty to protect the
right to life is one of means and not of result. However, the Court has clarified
that domestic “authorities must take appropriate care to ensure that any risk
to life is minimised” and it must be examined whether they “were
not negligent in their choice of action”. The Strasbourg Court has noted
the requirement on states to “undertake any measures within
their powers that could reasonably be expected to avoid, or at least mitigate
risk”.
It appears
that even the Turkish authorities have acknowledged that the death toll in this
and previous earthquakes have been connected to poor construction. Following
the 2011 earthquake in Türkiye,
Erdogan blamed poor construction for the (then) high death toll, and argued that the
negligence of municipalities, constructors and supervisors amount to murder. As
in the aftermath of 2011 earthquake, the Turkish authorities have issued numerous arrest warrants
and have already arrested a number of contractors
whose buildings collapsed in the 2023 earthquakes. In short, there appear to
exist prima facie scientific arguments and political acknowledgment by the
Turkish authorities that the death toll and destruction of property in the past
and recent earthquakes are also connected to bad construction and human
negligence.
It must be noted that
criminal prosecution of contractors whose buildings collapsed does not fully
satisfy States’ obligations under the right to life. This is only one post
factum obligation. Türkiye’s
obligations under the ECHR remain also with regards to the obligation to
prevent the loss of life, which includes two positive obligations. First, to issue
adequate building permits and enforce the requisite construction regulations to
prevent loss of life during earthquakes, and, second, to undertake adequate operational
measures to search and save lives after the earthquake.
While many victims remain
missing under the rubble, and those found need food, medical care and shelter,
the focus must remain on search and rescue operations, aid and solidarity with
the victims. Yet, the human factor involved in this tragedy merits an in-depth
discussion also about the accountability for failure to take the necessary
measures to protect the right to life as guaranteed by the European Convention
on Human Rights.
