International Disaster Response Law and the Commonwealth: Answering the Call to Action

Abstract

In 2005, the Commonwealth Heads of Government Meeting issued a ‘call to action’ for improving disaster management, ensuring effective and timely humanitarian assistance and strengthening the international response system. With weather and climate‐related hazards on the rise, coupled with their increasing impact on vulnerable people and economies, it has become critical to answer this call. Significant progress can be made through the elimination or reduction of the many legal and bureaucratic barriers that continue to plague international relief. This article explores how the Commonwealth, and indeed the international community as a whole, can learn from recent research in this area and take steps to implement the Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance (‘IDRL Guidelines’) and improve legal preparedness for disaster response.

Notes

1 United Nations International Strategy for Disaster Risk Reduction (2008) Links Between Disaster Risk Reduction, Development and Climate Change (Geneva: Commission of Climate Change and Development), p. 1.

2 India, Bangladesh and Zimbabwe ranked second, third and fourth respectively, based on numbers of persons affected. See International Federation of Red Cross and Red Crescent Societies (2008) World Disasters Report 2008 (Geneva: International Federation of Red Cross and Red Crescent Societies), Table 13, pp. 212–218.

3 Bangladesh (Cyclone Sidr, November 2007 and Floods, July–August 2007); India (Floods, July 2007 and Floods July–August 2007); Pakistan (Cyclone Yemyin, June 2007 and Floods and Landslides, June 2007). Scheuren, J‐M. et al. (2008) Annual Disaster Statistical Review—The Numbers and Trends 2007 (Brussels: Center of Research on the Epidemiology of Disasters, Department of Public Health, Universitè Catholique de Louvain), p. 8.

4 In Bangladesh, Cyclone Sidr in November 2007 killed 4,234 people and flooding in July–August 2007 killed 1,110 people. In India, flooding in July–August 2007 killed 1,103 people. Ibid., p. 8.

5 The United Kingdom suffered US$9,648,000 damage as a result of flooding in June and July 2007, behind the July earthquake in Japan which cost US$13,810,000. Dominica suffered a 7.46% loss of GDP from Hurricane Dean in August 2007 behind Oman with 9.62%. Ibid., p. 7.

8 Communiqué of the Commonwealth Heads of Government Meeting, Malta, 25–27 November 2005, paras 75–76.

6 United Nations International Strategy for Disaster Risk Reduction, op. cit., n 1, p. 1.

7 Communiqué of the Commonwealth Heads of Government Meeting, Auckland New Zealand, 10–13 November 1995, para 30 states: ‘[…] improved performance was not shared by several least developed countries and particularly small states, which are vulnerable to natural disasters and external shocks’; Communiqué of the Commonwealth Heads of Government Meeting, Uganda, 23–25 November 2007, para 59 states: ‘They expressed concern at the recent increase in frequency and intensity of natural disasters and their often devastating social, economic and environmental impact, particularly on small island developing states’.

9 Hyogo Framework for Action 2005–2015: Building the Resilience of Nations and Communities to Disasters, World Conference on Disaster Reduction, 18–22 January 2005, Kobe, Japan.

10 The International Federation of Red Cross and Red Crescent Societies is the world’s largest humanitarian organisation, whose mission is to improve the lives of vulnerable people by mobilising the power of humanity, including through the coordination and direction of international assistance to victims of natural and technological disasters, to refugees and in health emergencies. Founded in 1919, the International Federation comprises 186 member Red Cross and Red Crescent societies—with an additional number in formation. It is a component of the International Red Cross and Red Crescent Movement, which also comprises the International Committee of the Red Cross and National Red Cross and Red Crescent Societies.

11 The IDRL Programme seeks to reduce human vulnerability by promoting legal preparedness for disasters through advocacy, technical assistance, training and research. See website: www.ifrc.org/idrl.

12 Fisher, D. (2007) Law and Legal Issues in International Disaster Response: A Desk Study (Geneva: International Federation of Red Cross and Red Crescent Societies).

13 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950); Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950); Protocol I Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 17512 (entered into force 7 December 1978); Protocol Additional II to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non‐international Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 17513 (entered into force 7 December 1978).

14 For an overview of these instruments, see Fisher, op. cit., n 12, Chapters 3–5.

15 See Fischer, H. (2003) International Disaster Law Treaties: Trends, Patterns and Lacunae, in V. Bannon (Ed.) International Disaster Response Laws, Principles and Practice: Reflections, Prospects and Challenges (Geneva: International Federation of Red Cross and Red Crescent Societies).

16 Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations, 18 June 1998, United Nations depositary notification C.N.608.1998.TREATIES‐8 of 4 December 1998 (entered into force 8 January 2005) (‘Tampere Convention’).

17 International Convention on the Simplification and Harmonization of Customs Procedures, 18 May, 1973, TIAS 6633, Annexes B.3 and J.5 (‘Kyoto Customs Convention’).

18 Framework Convention on Civil Defence Assistance, 2 May 2000, 2172 UNTS 231 (2000).

19 Convention on Assistance in the Case of Nuclear Accident or Radiological Emergency, 26 September 1986, 1439 UNTS 275.

20 International Labour Organisation Convention 147 on Prevention of Major Industrial Accidents of 1993, available at: http://www.ilo.org/ilolex/english.

21 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, 13 January 1993, 32 ILM 804.

22 See for example: Inter‐American Convention to Facilitate Assistance in Cases of Disaster, 7 June 1991, available at: http://www.oas.org/legal/intro.htm; Organization of American States Office of International Law, A‐54 Inter‐American Convention to Facilitate Disaster Assistance, available at: http://www.oas.org/juridico/english/Sigs/a-54.html; Agreement Establishing the Caribbean Disaster Emergency Response Agency, 26 February 1991, available at: http://www.ifrc.org/what/disasters/idrl/publication.asp; Centro de Coordinación para la prevención de los Desastres Naturales en América Central, Antecedentes, available at: http://www.cepredenac.org/antecedentes.htm; Agreement between Member States and Associate Members of the Association of Caribbean States for Regional Cooperation on Natural Disasters, 17 April 1999 (not yet in force), available at: http://www.acs-aec.org/Summits/Summit/English/AgrmtNatDesas_eng.htm; and Consejo Andino de Ministros de Relaciones Exteriores, Decisión 529, Creación del Comité Andino para la Prevención y Atención de Desastres (CAPRADE), 7 July 2002, available at: http://www.comunidadandina.org/normativa/dec/D529.htm.

23 See for example the Dar es Salaam Declaration on Feeding Infants and Young Children in Emergency Situations in Africa, adopted in 1999, available at: http://www.ifrc.org/Docs/idrl/I303EN.pdf; and Field, T. (2007) Regional (Africa) Survey of Disaster Response Laws, Policies and Principles, available at: www.ifrc.org/idrl.

24 See for example: Council Regulation (EC) 1257/96 of 20 June 1996, Official Journal L 163, 2 July 1996; Partnership Agreement between the Members of the African, Caribbean and Pacific Group of States, of the One Part, and the European Community and its Member States, of the Other Part, Signed in Cotonou, Benin on 23 June 2000 (hereinafter, ‘Cotonou Agreement’); Agreement Amending the Partnership Agreement between the Members of the African, Caribbean and Pacific Group of States, of the One Part, and the European Community and its Member States, of the Other Part, Signed in Cotonou, Benin on 23 June 2000, both available at: http://www.acpsec.org/en/treaties.htm.

25 ASEAN Agreement on Disaster Management and Emergency Response, 26 July 2005, available at: http://www.aseansec.org; Agreement on Establishing the SAARC Food Bank, 4 April 2007, available at: http://www.ifrc.org/Docs/idrl/I646EN.pdf.

26 See for example, Arab Cooperation Agreement on Regulating and Facilitating Relief Operation, League of Arab States Decision No. 39, 3 September 1987.

27 Ibid.

28 Inter‐American Convention to Facilitate Assistance in Cases of Disaster, 7 June 1991 (hereinafter ‘the Inter‐American Convention’), available at: http://www.oas.org/legal/intro.htm.

29 Agreement between Member States and Associate Members of the Association of Caribbean States for Regional Cooperation on Natural Disasters, 17 April 1999 (not yet in force), available at: http://www.acs-aec.org/Summits/Summit/English/AgrmtNatDesas_eng.htm.

30 ASEAN Agreement on Disaster Management and Emergency Response, 26 July 2005 (hereinafter, ‘ASEAN Agreement’), available at: http://www.aseansec.org.

31 See ‘ASEAN to Lead International Coalition of Mercy for Myanmar, Secretary‐General of ASEAN Surin Pitsuwan to Meet World Bank President Robert Zoellick in Washington DC’, Media Release, ASEAN Secretariat, Indonesia, 13 May 2005, available at: http://www.aseansec.org/21536.htm; and ‘Chair of ASEAN Humanitarian Task Force Meets International Organisations and Groups to Coordinate Humanitarian Operations for the Victims of Cyclone Nargis’, Media Release, ASEAN Secretariat, Indonesia, 27 May 2008, available at: http://www.aseansec.org/21585.htm.

32 The International Red Cross and Red Crescent Movement comprises the International Committee of the Red Cross, the International Federation of Red Cross and Red Crescent Societies and National Red Cross and Red Crescent Societies.

33 Principles and Rules for Red Cross and Red Crescent Disaster Relief, adopted by the 21st International Conference of the Red Cross, Istanbul, 1969—revised by the 22nd, 23rd, 24th, 25th and 26th International Conferences—Tehran, 1973; Bucharest, 1977; Manila, 1981; Geneva, 1986; and Geneva, 1995.

34 See Resolution 4, Principles and values in international humanitarian assistance and protection, para. E(1), 26th International Conference of the Red Cross and Red Crescent, Geneva, 1995.

35 Resolution 26, The role of medical personnel in the preparation and execution of Red Cross emergency medical actions, 24th International Conference of the Red Cross and Red Crescent, Manila, 1981 and Resolution 19, Medical supplies in Red Cross and Red Crescent emergency operations, 25th International Conference of the Red Cross and Red Crescent, Geneva, 1986.

36 Resolution 9, Red Cross emergency radio communications, 23rd International Conference of the Red Cross and Red Crescent, Bucharest, 1977.

37 Resolution 5, Issue of visas to delegates appointed in connection with appeals for assistance in time of disaster, 23rd International Conference of the Red Cross and Red Crescent, Bucharest, 1977.

38 Resolution 23, Air transport in international relief actions, 21st International Conference of the Red Cross, Istanbul, 1969.

39 See Resolution 6, Measures to expedite international relief, 23rd International Conference of the Red Cross and Red Crescent, Bucharest, 1977; ECOSOC Res. 2012 (LXIII) (1977); UN GA Res 32/56, UN Doc. No. A/RES/32/56 (1977).

40 See for example Assistance in Cases of Natural Disaster, GA Res 2034(XX), UN GAOR, session, UN Doc A/Res/2034(XX) (1965); Humanitarian Assistance to Victims of Natural Disasters and Similar Emergencies, GA Res 43/131, UN GAOR, 43rd sess, 75th plen mtg, UN Doc A/Res/43/131 (1988); and International Cooperation on Humanitarian Assistance in the Field of Natural Disasters from Relief to Development, GA Res 56/103, UN GAOR, 56th sess, 87th plen mtg, UN Doc A/Res/56/103 (2002). For an overview see Katoch, A. (2003) International Natural Disaster Response and the United Nations, in Bannon (Ed.), op. cit., n 15.

41 UN General Assembly Res. 46/182, UN Doc. A/RES/46/182 (1991).

42 Ibid., at annex para 3.

43 Ibid., at annex paras 5–6.

44 Ibid., at annex paras 12, 33 and 35.

45 These are described in Fisher, op. cit., n 12, pp. 40–45 and 57.

46 For an analysis of these, see Ibid., pp. 60–61.

47 For an overview see Ibid., pp. 58–60.

48 Sphere Project, Humanitarian Charter and Minimum Standards in Disaster Response (2004 edition), available at: http://www.sphereproject.org.

49 Available at: http://www.hapinternational.org.

50 Available at: http://www.ingoaccountabilitycharter.org.

51 People in Aid Code of Good Practice in the Management and Support of Personnel (2003), available at: http://www.peopleinaid.org/pool/files/code/codeen.pdf.

52 ‘Private Voluntary Organisation’ Standards, see the overview provided by InterAction available at: http://www.interaction.org/pvostandards/index.html.

53 See for example: Inter‐Agency Standing Committee (2004), Implementing the Collaborative Response to Situations of Internal Displacement: Guidance for UN Humanitarian and/or Resident Coordinators and Country Teams; Inter‐Agency Standing Committee (2003), Terms of Reference for the Humanitarian Coordinator; and Inter‐Agency Standing Committee (2006), Guidance Note on Using the Cluster Approach to Strengthen Humanitarian Response. The above are available at: http://www.humanitarianinfo.org/iasc.

54 See Fisher, op. cit., n 12, Box 5, pp. 86–87.

55 See Ibid., Appendix 3: Report of the IDRL Questionnaire of 2006, pp. 196–211.

56 A full of list studies conducted between 2002 and 2007 can be found in Ibid., Appendix 2, pp. 194–195.

57 See in particular: Calvi‐Parisetti, P. (2003) International Disaster Response Law Project: Report on Findings from South Asia, Southern Africa and Central America (Geneva: International Federation of Red Cross and Red Crescent Societies); Bannon, V. et al. (2006) Legal Issues from the International Response to the Tsunami in Sri Lanka (Geneva: International Federation of Red Cross and Red Crescent Societies); Rochester, C. (2007) Legal Challenges to International Response to Natural Disasters in Jamaica: Context of Hurricanes Ivan, Dennis and Emily, available at: www.ifrc.org/idrl; Field, op. cit., n 23; and De Windt, C. (2007) Law of Disasters: Toward a Normative Framework in the Americas, Discussion Paper prepared by the Department of Sustainable Development of the Organization of American States prepared for the Americas Regional Forum on International Disaster Response Laws, Rules and Principles, Panama, 23–24 April 2007, available at: www.ifrc.org/idrl.

58 See for example Fiji and Turkey described in Bannon, V. et al. (2005) Fiji—Laws, Policies, Planning and Practices on International Disaster Response (Geneva: International Federation of Red Cross and Red Crescent Societies), p. 30; and Turkish Red Crescent Society (2006) International Disaster Response Law: 1999 Marmara Earthquake Case Study, available at: www.ifrc.org/idrl, p. 38.

59 See Telford, J., Cosgrave, J. and Houghton, R. (2006) Joint Evaluation of the International Response to the Indian Ocean Tsunami: Synthesis Report (London: Tsunami Evaluation Coalition), p. 43, describing how the decision to open the affected Aceh province to the international community was not widely known for two days.

60 See Fisher, op. cit., n 12, pp. 89–90.

61 Bannon, V. et al. (2007) Legal Issues from the International Response to the Tsunami in Indonesia (Geneva: International Federation of Red Cross and Red Crescent Societies), p. 22. See also examples from Sri Lanka, South Africa, Bolivia, Mozambique, Angola and Dominican Republic described in Fisher, op. cit., n 12, p. 99.

62 IRIN, Food Aid Held for Taxes to be Released Says Gov’t Official (16 August 2005).

63 Bannon, op. cit., n 57.

64 In Fisher, op. cit., n 12, Appendix 3: Report of the IDRL Questionnaire of 2006, p. 200.

65 See Ibid., pp. 122–123.

66 See Ibid., p. 123.

67 Ibid., pp. 123–124.

68 In Ibid., Appendix 3: Report of the IDRL Questionnaire of 2006, pp. 196–211.

69 An exception to this was following the immediate aftermath of Cyclone Nargis in Myanmar where it was reported that visas were not initially being granted to aid agencies: Bowley, G., Newman, A. et al. (2008) Myanmar faces pressure to allow major aid effort, New York Times, 5 May, available at: http://www.nytimes.com/2008/05/08/world/asia/08myanmar.html?ref=world.

70 See instances reported from Indonesia, Sri Lank and Thailand following the Indian Ocean Tsunami and the Bam Earthquake in Iran, in Fisher, op. cit., n 12, pp. 116–117.

71 Bannon et al., op. cit., n 61, p. 16.

72 See for example Ibid., p. 19.

73 See for example Bannon, V. et al. (2006) Legal Issues from the International Response to the Tsunami in Thailand (Geneva: International Federation of Red Cross and Red Crescent Societies), p. 17.

74 See Fisher, op. cit., n 12, p. 125.

75 Ibid., p. 125.

76 Bannon, et al., op. cit., n 73, p. 14.

77 See Fisher, op. cit., n 12, pp. 125–129.

78 In Ibid., Appendix 3: Report of the IDRL Questionnaire of 2006, p. 203.

79 See Ibid., pp. 99–101.

80 Goodman, P. (2005) For tsunami survivors, a touch of Scientology, Washington Post, 28 January. See also International Federation of Red Cross and Red Crescent Societies (2005) World Disasters Report 2005 (Geneva: International Federation of Red Cross and Red Crescent Societies), p. 93.

81 For details and other examples see Fisher, op. cit., n 12, pp. 133–149.

82 See Jacobs, A. (2003) Regulating Humanitarian Intervention (UK: Mango), p. 7; and NGO Impact Initiative (2006) An Assessment by the International Humanitarian NGO Community (USA: NGO Impact Initiative), p. 11.

83 Fisher, op. cit., n 12, p. 133.

84 Final Goal 3.2, Agenda for Humanitarian Action adopted by the 28th International Conference of the Red Cross and Red Crescent, Geneva, 2003.

85 ‘Resolution 4 on the Adoption of the Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance’, 30th International Conference of the Red Cross and Red Crescent Movement, Geneva, 2007, available at: www.ifrc.org/idrl.

86 Hyogo Framework for Action 2005–2015: Building the Resilience of Nations and Communities to Disasters, World Conference on Disaster Reduction, 18–22 January 2005, Kobe, Japan.

87 See the collection of national legislation in the IDRL Online Database, found at: www.ifrc.org/idrl.

88 International cooperation on humanitarian assistance in the field of natural disasters, from relief to development, Report of the Secretary General, UNGA, 13 August 2008, UN Doc. A/63/277, paras 41–42.

89 Strengthening of the coordination of emergency humanitarian assistance of the United Nations, ECOSOC Res, 25 July 2008, UN Doc. E/2008/L.28, OP 5.

90 See Report of the International Law Commission, 58th Sess. (1 May–9 June and 3 July–11 August 2006), UN Doc. No. A/61/10 (2006), at 464.

91 See Valencia‐Ospina, E. (2008) Preliminary Report of the Special Rapporteur on the Protection of Persons in the Event of Disasters, International Law Commission, 60th Sess. (5 May–6 June and 7 July–8 August 2008), UN Doc. A/CN.4/598, paras 1–2.

92 Official Records of the General Assembly, Sixty‐second Session, Supplement No. 10 (A/62/10), para. 375.

93 Valencia‐Ospina, op. cit., n 91.

94 See International Federation of Red Cross and Red Crescent Societies (2008), ASEAN Forges Ahead with its Agreement on Disaster Management, IDRL E‐Newsletter No. 10, March, available at: http://www.ifrc.org/Docs/pubs/idrl/idrl-enews-10-p3.pdf.

95 See International Federation of Red Cross and Red Crescent Societies (2008), CAPRADE Reaches Out to the Red Cross, IDRL E‐Newsletter No. 11, April, available at: http://www.ifrc.org/Docs/pubs/idrl/idrl-enews-11-p5.pdf.

96 See Ibid.

97 See International Federation of Red Cross and Red Crescent Societies (2008) Arab League Group Considers IDRL Guidelines, IDRL E‐Newsletter No. 11, April, available at: http://www.ifrc.org/Docs/pubs/idrl/idrl-enews-11.pdf.

98 See ‘Communiqué: A Call for Action’, Inaugural Pacific Regional Disaster Risk Management Meeting for CEOs of Finance/Planning and Disaster Management, 24–25 July 2008, Nadi, Fiji Islands.

99 See the Harare Declaration, issued by the Commonwealth Heads of Government in Harare, Zimbabwe, on 20 October 1991.

100 Meeting of Commonwealth National Committees on International Humanitarian Law, Nairobi, 21 July 2005.

101 See for example Communiqué of the Commonwealth Law Ministers Meeting, Edinburgh, 7–10 July 2008.

102 The Second Commonwealth Red Cross and Red Crescent International Humanitarian Law Conference, Wellington, New Zealand, 29–31 August 2007.

103 Communiqué of the Commonwealth Law Ministers Meeting, Edinburgh, 7–10 July 2008.

104 For the full work plan of the International Federation’s IDRL Programme see www.ifrc.org/idrl.