Operating specifically in the context of armed conflict, international humanitarian law covers only part of the regime of humanitarian assistance. The growing number of disasters and their humanitarian impacts has prompted the need for a framework that addresses the responsibilities of states and humanitarian agencies in disaster settings. This has led to the emergence of international disaster response laws, rules and principles (IDRL), comprised of a collection of international instruments addressing various aspects of post-disaster humanitarian relief. It aims to cover a broad range of rules, including issues related to initiation of disaster assistance, consent, access, conditions of assistance, and movement of personnel and materials (Todres, 2011).
Differing contexts – disasters and armed conflicts
There is often a greater expectation in the case of disasters than in armed conflicts that domestic authorities will take the primary role in international humanitarian aid efforts and will not only facilitate access, but also coordinate it and monitor its effectiveness. In addition, given the longer establishment of IHL, there is much broader acceptance and clarification of the specific rights and obligations in armed conflict. There are fewer conditions that can legitimately be imposed on international humanitarian organisations before allowing them access in conflict settings.
In terms of regulatory concerns, many of the same issues are faced in both disaster and conflict environments. These include regulatory barriers, such as bureaucratic delays in the entry of personnel, goods and equipment; and regulatory gaps, such as the absence of mechanisms to facilitate efficient domestic legal recognition of international organisations. There are also differences, however, for example concerns over security, which may not be as relevant in some disaster situations.
In mixed situations, where there is both a disaster and ongoing armed conflict – for example the 2004 tsunami in Sri Lanka – IHL is the governing law. Even if the need for relief is prompted by a natural disaster rather than by ongoing fighting, the obligations of the parties to the conflict in an armed conflict setting remain the same (Fisher, 2007).
What are the main sources of IDRL?
IDRL is not a comprehensive or unified framework. There are no core international treaties, such as the Geneva Conventions and Additional Protocols under IHL. Rather, it consists of a fragmented and piecemeal collection of various international, regional and bilateral treaties, non-binding resolutions, declarations, codes, guidelines, protocols and procedures. This includes relevant provisions of international treaties in other areas of law, such as international human rights law, international refugee law and IHL (in the case of conflict situations).
Treaties: These largely comprise bilateral treaties, covering various areas such as technical assistance, mutual assistance and agreements regulating humanitarian relief between the two state parties. The latter two tend to involve formal rules for the initiation and termination of assistance; and provisions for reducing regulatory barriers (involving e.g. visas and work permits and customs control for relief personal and goods). Regional treaties have largely been adopted for mutual disaster assistance and are in place in the Americas, Asia and Europe.
There are a limited number of multilateral treaties. Like other bilateral treaties, they are often focused on a particular sector of operations such as health, telecommunications and transport. The global, but sectoral, Tampere Convention of 1998, for example, commits parties to reduce regulatory barriers and restrictions on the use, import and export of telecommunications equipment for disaster relief (Bannon, 2008; Fisher, 2007). Some global treaties are specific to particular types of disasters, including environmental treaties and treaties concerning industrial or nuclear accidents. Although these global treaties are legally binding, many are limited in utility as few states have ratified them or they are very limited in scope, geographic reach, or enforceability. In addition, few treaties address international actors other than states or UN agencies (Heath, 2011; Todres, 2011).
International Custom: It has been argued that there is a right to receive humanitarian assistance in disaster situations under customary international law. Sources relied upon include the ‘Code of Conduct for the International Red Cross and Red Crescent Movement and NGOs in Disaster Relief’ which states that there is a right to receive and to offer humanitarian assistance. In addition, the right to a healthy environment as an aspect of the fundamental right to life has been relied upon not only to demonstrate a right to assistance under IHRL but also as part of customary international law.
However, for practice to develop into customary law there must be an indication of extensive and uniform state practice and a belief that such actions are required by law. In contrast, states have often responded to disasters on a case-by-case basis. It is also doubtful whether actions of non-state actors can be relied upon to satisfy the requirements of international custom (de Urioste, 2006-7).
UN resolutions (soft law): The instruments with the broadest scope in IDRL are non-binding recommendations, declarations and guidelines. This includes the ‘Measures to Expedite International Relief’, endorsed by the UN General Assembly and the International Conference of the Red Cross in 1977. The General Assembly also passed Resolution 36/225 in 1981, which called for strengthening the UN’s capacity to respond to disasters; and Resolution 46/182 in 1992, which called for a ‘strengthening of the coordination of emergency humanitarian assistance of the United Nations system’. Around the same time, the office that would later become the Office for the Coordination of Humanitarian Affairs (OCHA) was created. In 2002, the General Assembly adopted Resolution 57/150, which reaffirmed resolution 46/182 and provided for strengthening the effectiveness and coordination of international urban search and rescue assistance.
IDRL Guidelines: The International Federation of Red Cross and Red Crescent Societies adopted in 2007 the ‘Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance’ (see recent developments in IDRL below). They are considered to be a significant development to the IDRL framework, with the potential to contribute to the development of norms under customary international law.
How is humanitarian assistance treated in IDRL: What duties and rights exist?
These various instruments that comprise IDRL do not impose a duty on affected states to accept international assistance. UN General Assembly Resolution 36/225 emphasises that sovereignty remains a key feature of international disaster assistance. Resolution 46/182 specifies that the affected state has the primary responsibility for all aspects of humanitarian assistance within its territory (initiation, organisation, coordination and implementation) and that international assistance should be provided with the state’s consent. These and other General Assembly resolutions have tended to focus on the ‘importance’ rather than the ‘right’ of humanitarian assistance in disaster contexts (Fisher, 2010).
Eburn (2011) suggests four scenarios where the deployment of disaster assistance without the prior consent of the affected state could be justified. These are: (i.) where a state is unable or unwilling to provide relief; (ii.) where there is no effective government of the affected state; (iii.) where action by the intervening state is aimed at preventing the spread of a hazard into its own territory; and (iv.) under the auspices of the UN in order to deal with a threat to international peace and security. All of these situations would be rare. In addition, intervening without the consent of the state party would make it extremely challenging to delivery assistance effectively.
Cyclone Nargis in Burma: Arguments for Intervention without Consent
In 2008, Cyclone Nargis devastated Burma, leaving over 130,000 people dead and many in need of humanitarian assistance. However, the Burmese government refused access to the affected population by states and NGOs that were ready and willing to assist, while at the same time being slow to take responsibility itself. There were fears that without access, infectious disease would spread and the lives of many more thousands would be endangered. Arguments were made that states should be able to use force to protect the population in Burma from human rights abuses, considered here to be failure on the part of the state to assist the affected community (see also this guide’s section on R2P). This was done in 1992, when the UN Security Council endorsed military action in Somalia to facilitate the delivery of humanitarian assistance. In that case, the conflict was providing a significant barrier to delivery. Ultimately, in the case of Burma, intense diplomatic efforts were partially successful at securing limited access to the affected populations and the international community was able to find non-coercive ways to pressure the government into participating in a coordinated, humanitarian response. Although many problems remained and progress was slow, this was considered to be a better alternative than forced humanitarian assistance in the context of a disaster (Eburn, 2010; Barber, 2009).
What are the gaps in IDRL and related problems?
While regulatory problems in the delivery of humanitarian assistance exist in both disaster and conflict settings, they are exacerbated in the former due to the absence of an established comprehensive legal framework and an undeveloped disaster response and coordination mechanism. Common problems identified include:
Initiation/barriers to entry: In cases of major disaster, it is very rare that a state will refuse international assistance (the case of Burma was a unique situation). Instead, the more common problem is delay in the issuance of a formal request for such assistance or in the response to international offers. This could be due to weaknesses in national procedures and regulations for needs assessment and decision-making (Fisher, 2007).
Legal facilities for operation: Even where consent is given for humanitarian operations, there are often problems with visas and travel restrictions. Disaster personnel are often granted entry on tourist or other temporary visas, which can cause subsequent problems with renewal and efforts to obtain work permits. Customs formalities are also a frequent problem, with relief goods held up for long periods of time waiting for clearance. The recognition of domestic legal status is another common problem for international relief providers, particularly for NGOs and foreign Red Cross or Red Crescent societies. The processes are often too slow or difficult to negotiate in emergency settings. Unregistered organisations face various problems, including difficulty opening bank accounts, hiring staff, obtaining visas for workers and tax exemptions. Bilateral agreements, negotiated in advance of an emergency, can be of significant assistance in addressing these issues. Without an agreement is in place, there is little guidance at the international level beyond the general obligation to facilitate aid (Mosquini, 2011; Bannon, 2008; Fisher, 2007).
Regulation of co-ordination and quality: Although affected states are expected to play the leading role in disaster settings, they have in some cases adopted a ‘hands-off’ approach, which has resulted in uneven and uncoordinated international efforts. International legal regulation of the quality of humanitarian assistance is also considered weak. This is due in part to states’ reluctance to create legal frameworks that could threaten control over their borders; and concern by humanitarian actors that quality control regulations could result in loss of independence and freedom of action (Fisher, 2010).
Regulatory Barriers and Lack of Co-ordination in post-Tsunami Disaster Relief
Following the devastating 2004 Indian Ocean earthquake and tsunami, many countries in the region were in need of humanitarian assistance. There were various regulatory and co-ordination problems, however, that resulted in ineffective and inefficient delivery of assistance. During relief efforts in Indonesia and Thailand, relief personnel were consistently required to exit and re-enter the country during their operations to renew their visas, with substantial expense and loss of time. Customs formalities were also a problem, with extensive delay in clearance of consignments in Indonesia and Sri Lanka and ultimately wasted perishable food and medications. Even where relevant treaties were in place, for example the Tampere Convention (ratified by Sri Lanka) to deal with telecommunications equipment, there is no indication that any of the provisions were specifically invoked during the relief operation. Domestic registration processes were also a problem in Thailand, with foreign NGOs unsuccessful at getting information about the registration process from governmental sources even months after the disaster struck. In Sri Lanka, the government introduced various new structures that overlapped with existing structures for relief efforts, resulting in duplication and bureaucratic barriers. There was little government consultation, coordination and information sharing with local groups and communities, which also led to inefficient duplication and lack of tailoring to local needs. Many humanitarian agencies were also unfamiliar with local contexts and conflict dynamics, resulting in ineffective interventions (CPA, 2007; Bannon, 2008; Fisher, 2007).
What are recent developments in IDRL?
Although IDRL is still in a nascent stage and gaps remain in its framework, progress has been made. The adoption of the ‘Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance’ (IDRL Guidelines) by the International Federation of Red Cross and Red Crescent Societies in 2007 is considered to be a significant development. Although these guidelines are non-binding, they are comprehensive in geographic scope, relevant for all sectors and for all types of disasters, and address both state and non-state actors. They aim to foster international agreement on how to address key issues specific to disaster settings. They define the responsibilities of affected states (reinforcing that primary responsibility lies with affected states) and offer a set of recommendations to governments for preparing their domestic laws and systems to manage international assistance during relief efforts. This includes encouraging legal facilities for operation, such as visa, customs and transport facilitation, tax exemptions, and a simplified process for acquiring temporary domestic legal personality. These facilities are conditional on ongoing compliance by humanitarian actors with core humanitarian principles and minimum standards drawn from widely recognised sources, such as the Code of Conduct.
The substance of the guidelines is drawn primarily from international laws, rules, norms and principles; and from lessons and good practice from the field. The guidelines have achieved broad international support. State parties to the Geneva Conventions adopted these guidelines at the International Conference of the Red Cross and Red Crescent in 2007. Moreover, several countries have already adopted new regulations or administrative rules based on or inspired by the guidelines (Mosquini, 2011; Fisher, 2010; Bannon, 2008).
The International Law Commission (ILC), an expert body of the UN charged with codifying customary international law, has also been engaging in advancing the framework for disaster response. Its programme on the ‘Protection of Persons in the Event of Disasters’ is aimed at developing a legally binding framework at the global level (Mosquini, 2011). Draft articles include attention to humanitarian principles; the duty of states to seek assistance when their national response capacity is exceeded; the duty not to arbitrarily withhold consent to external assistance; and the right of the international community to offer assistance.