Monday 13 February 2023

Earthquakes in Türkiye and the Right to Life: Whither Positive Obligations?

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.